Volume 5 — Watts's Pennsylvania Reports

Jacob Musselman the testator had several children, of whom Marjr Spotswood was one. In his lifetime he kept a book in which he charged each of his children with all advancements made to them.

Clearfield county. This was an action of ejectment by David M’Culloch against George Atchison for three hundred acres of land in Chest township. The facts of the case, and points made, are fully stated in the opinion of the court, which was delivered by

THIS was a proceeding by Thomas Brown against John Gray and Elizabeth Gray, before two justices of the peace, to obtain the possession of a house and lot which the complainant had purchased from Dr Wm C. Chambers who had purchased the same at sheriff’s sale.

This was an action of trespass by James H. Case, Daniel Charles, and George Snyder, against John Deckard, and arose out of the following circumstances: Lowe & Mead were partners in the coach and wagon making business, and contracted a number of debts, for some of which judgments were obtained, and executions issued, to an amount about 600 dollars.

The facts of this case are fully set forth in the following petition.

Samuel C. Slaymaker for the use of Abraham Cassel, against The Marietta and Susquehanna Trading Company, with notice to the ierre-tenants who were the widow and heirs at law of Stephen St John.

This was an action by the Northumberland Bank against Rody M’Gee, on his indorsement of a note drawn to his order by Peter Ritner for 600 dollars, payable at the bank.

WRIT of error to the district court of Lancaster county. This is an action of replevin, in which the plaintiff, Isaac Tyson, jr., claims 35 tons of chromate of iron as having been taken from him by William Gibson the defendant. The latter pleaded that this chrome was his own property, which the plaintiff denied; and upon that fact the issue between them depended.

This action was brought in the name of the trustees, elders, and deacons of the German Reformed Church in Carlisle and its vicinity, for the use of John S. Ebaugh against Jacob Hendel. It originated before a justice of the peace, and brought into court by appeal. The action was brought for 16 dollars, two years’ pew rent, for pew No. 9 in said church, from the 1st of October 1830, till the 1st of October 1832. At issue and tried the 20th of August 1834.

This was an action by Josiah Lord against Abraham Dubois, who was a justice of the peace, upon a contract by the defendant to enter up a transcript of an appeal from a judgment of the said justice against the said Josiah Lord at the suit of Ebenezar Bowman. The facts of the case are sufficiently stated in the opinion of the court, by which to understand the only points decided in the cause.

Auditors were appointed by the orphan’s court to apportion the assets of the estate of Michael Boyer deceased, in the hands of his administrators, among the creditors, who made report, to which ex.ceptions were filed. Upon hearing the exceptions, the court set aside the report and apportioned the assets by their own decree. From which this appeal was entered.

Henry F. Tamney against Henry Hubler and George Hubler. In this action, on a single bill dated the 16th of March 1825, the defendants offered to prove, under the pleas of payment with leave, and set-off, that the plaintiff took the books of the fulling mill in 1825, and had kept possession, and received and held the money on them to a large amount; and offered one half of the accounts and money as a set-off in this action under the lease between the defendants and the…

<p>Testator by his will disposed of his estate, real and personal, and, by a codicil, directed his executor to purchase a certain tract of land, upon which he held a mortgage, if it sold for an amount less than the mortgage debt. Before his death he purchased the equity of redemption, and subsequently died without altering his will: Held, that such purchase did not merge it in the qualified legal title existing in the testator at the making of the will, so as to give him the estate by relation; and that as he died intestate of it, it descended to his heirs at law, and did not go to his executors.</p>

This was an action of ejectment by George Boyer and Samuel Boyer, executors of George Boyer, deceased, against Jacob Smith.

Action of assumpsit for work and labour by James Armstrong, surviving partner of the late firm of James Armstrong & John Atkinson, for the use of George B. Markley, against the mayor, aider-men and citizens of Lancaster.

<p>In an action of ejectment against two defendants, one appeared and pleaded to issue, the other disclaimed, and objected to the jury being sworn as to him : Held, that the cause was not at issue as to both defendants, and that the trial and judgmentwere erroneous as to both, although the jury found for the defendant who disclaimed. In such case the court should compel the defendant who disclaims, to give judgment, or order him to plead, instanter, the general issue.</p> <p>Unless an exception to the charge of the court be taken at the time of the trial, and be accompanied with a request that it be filed, the party will not be permitted to make it the subject of the assignment of error, although it should afterwards have been filed by the court at his request.</p>

<p>ERROR to the common pleas of Centre county.</p> <p>Amicable action wherein David Allison was plaintiff and A. V. Parsons and others, assignees of Curtz & Hepburn, were defendants, in which the following facts appeared by a special verdict.</p> <p>April 27th, 1833, the commissioners of Centre county made out the duplicate for county and stale tax of Lamar township in said county; which was delivered to David Allison, Esq., collector, the above plaintiff, in June 1833. In the said duplicate, the firm of Curtz & Hepburn were taxed, amounting to 35 dollars 71 cents. The said collector proceeded to demand the said taxes which were not, and are not yet paid ; that on the premises of Curtz & Hepburn was personal property sufficient for the payment of said taxes.</p> <p>On the 31st day of July 1835, John Curtz and James Hepburn, the firm of Curtz & Hepburn, made an assignment to the said A. V. Parsons, T. Coryell and Saul M’Cormickof all their property, real, personal and mixed, for the payment of their debts; which was recorded on the 3d day of August 1835, in the county of Lycoming, and on the 26th of August in Centre, including the property in Centre and Lycoming county. That the said assignees have procured the said property to be duly appraised on the 6th and 7th of August 1835, and the appraisement and bond, with the proper sureties have been filed according to the provisions of the act of assembly regulating assignments in the county of Lycoming, and the whole property, real and personal, taken into their possession.</p> <p>The question to be decided is, whether the plaintiff is entitled, by virtue of his duplicate, to be paid out of the personal property aforesaid, the amount of the said taxes before stated ? If the court are of opinion in the affirmative, then judgment to be entered for plaintiff for 35 dollars 71 cents, otherwise judgment for defendants; and if the plaintiff has a right to seize the personal property for the taxes, the judgment to be for plaintiff, otherwise for defendants.</p> <p>The court below rendered judgment for the plaintiff.</p> <p>Errors assigned.</p> <p>1. The court erred in deciding that the property of the defendants, under the facts disclosed in the case stated, was liable to seizure by the collector.</p> <p>2. The court erred in rendering judgment for the plaintiff below.</p> <p>The question raised in this cause is, whether a collector of taxes, by virtue of his duplicate, has a specific lien on the personal property of the individuals charged in his duplicate, with the payment of a tax ? because if he has not, then there was manifest error in the opinion of the court below. For the property being transferred bona jide, and possession delivered, the persons against whom the taxes were assessed, ceased to be the owners; and if the collector had no lien before the transfer of the property, then his right of seizure was gone the moment the property was sold.</p> <p>If there is a lien by virtue of a collector’s warrant, it must be created by our acts of assembly, because no common law rule gives such superior claim. The fifteenth section of the act of the 11th of April 1799, Pur don 138, prescribes the manner of collecting the tax. It first requires that a demand shall be made, and then if any person shall neglect or refuse payment within thirty days from the time of such demand, it shall be the duty of the collectors to levy the said tax by distress and sale, &c., &c., and for want of goods to take the body, &c. Now this act creates no specific lien until after distress made, and consequently so far as any provision here is made if a bona fide sale takes place of an individual’s property, the right to distrain that property has unquestionably ceased.</p> <p>The act of the 11th of March 1822, Purdon 153, provides, that in cases where warrants have issued by the commissioners to the collectors of county taxes, such warrants shall be good and valid against the persons in their respective duplicates owing any county tax, for three years after the date of the warrant. This act clearly creates no lien — it only extends the time when a levy of distress may be made by virtue of a warrant: it confers no greater powers than the act of the 11th of April 1799. And clearly the legislature never intended that a collector should have it in his power to prevent any person, against whom he had a tax, from selling his personal property for a period of three years; or, if one should buy his neighbour’s horse two years after a tax was assessed, that a collector could levy upon it for taxes. For, if the warrant creates a lien, then, if a Centre county man should sell a load of iron in Philadelphia, which he had on hand when the tax became due, the collector could go to the city and seize it in the hands of the iron merchant with his warrant, which surely would not be tolerated. And a voluntary assignment, made according to law, is of the same validity as a sale for cash.</p> <p>And if a warrant creates such lien, then it would interrupt the course of administration of the goods of a deceased person who happened to die without paying his taxes.</p> <p>There is one other act of assembly to which I will call the attention of the court, although the facts in the case stated seem to me to render it inapplicable here. I refer to the act of the 3d of April 1804, section six, which provides that every tenant who may or shall occupy or possess any lands or tenements, shall be liable to pay the taxes which, during such occupancy or possession, may thereon become due and payable; and further gives the remedy of the tenant against the landlord.</p> <p>In this case the taxes became due in the year 183.3, consequently they did not become due during the occupancy of the plaintiffs in error, and the act of assembly creates no liability for any other taxes.</p> <p>And in the second place the relation of landlord and tenant did not exist; and I deny that, in any case, where there is a tenancy, either for life, years, at will, or by sufferance, has the collector any claim.</p> <p>That act restricted the right to the collector to go only against the tenant; and the legislature, bjr the act of the 15th of April 1834, Pamph. L. 518, and in the forty-sixth section of the act say, that goods and chattels of any person occupying any real estate, shall be liable to distress and sale for the payment of taxes during his possession or occupancy. In this act the legislature have not confined it to the tenant, but authorise a levy to be made on the goods of the occupier.</p> <p>The laws regulating the collection of taxes, contemplate prompt payment, and give a remedy that facilitates that object; and if a collector will stand by for two years, and in the mean time the person against whom a tax is charged sells his property: let such collector abide the consequences ; and in this case he is like all other creditors, he can come in for his share under the assignment; but to give him a preference would be downright injustice.</p> <p>The point at issue is, whether under the facts stated, and the provisions of the several acts of assembly, the defendant in error had authority to levy the tax, by distress, out of the goods and chattels remaining on the premises, and transferred by their voluntary assignment, to the plaintiff in error.</p> <p>The act of the 11th of March 1822, 7 Smith 507, provides, “ That the collectors, respectively, or their legal representatives, be authorised and shall have full power to collect said taxes at any time within three years after the date of such warrant, in the same manner and with like effect, as they could or might have done at any time previous to the expiration of the time limited in said warrant.” The warrant issued to the defendant in error was dated on the 27th of April 1823, and is within the three years specified as the period of vitality in the act. The second section of this act prohibits the institution of any suit, by a collector, for the recovery of a tax duly assessed. The mode of recovery is limited to the manner provided by the various statutes. To them we must recur. To arrive at a proper construction, the whole provisions contained in the several acts for the collection of taxes must be taken into view as they constitute a sj'stem. The fifteenth sectipn of the act of 1799, directs the collector to “ demand” the payment of the tax, and provides, that in case of neglect or refusal to pay within thirty days thereafter, the collector shall “ levy the said tax by distress and sale of the goods and chattels of said delinquent.” Under the provisions contained in this section, connected with the first section of the act of 1822, there can be no doubt of the authority of the collector to have levied on the goods and chattels on the premises, unless the assignment precludes him. Does it dp so? If the property had been sold, for a full and valuable consideration, to an innocent purchaser, the possession delivered, and the property removed, it would present a very different case. Then the indulgence of the officer to the'delinquent., would have resulted in a direct injury to an innocent person. This the law would not endure. Nay, if the property had been removed from the premises, on which, and with which, it was assessed and taxed, it possibly might make some difference. But it remains on the premises, in the possession of the trustees of Curtz &. Hepburn, and for their use and benefit, the surplus of the proceeds, after payment of the debts, to be paid over to them. The delinquents had a reversionary interest in the property; it was used and occupied by their trustees, in conducting Lamar Furnace, for their benefit. Then, in truth, and in fact, the goods and chattels were beneficially in the possession of the individuals, in whose names the tax was assessed. The sixth section of the act of the 3d of April 1804, is worthy of consideration, inasmuch as it makes a tenant on lands liable for taxes assessed before his occupancy, provided they fell due during the period he was in the possession. Thus showing that, in the view of the legislature, property remaining on the premises, or the occupancy of land, renders the liability for taxes more extensive than when it is removed, or when the taxes fall due after the occupancy had ceased.. The case of Baskin et al. v. Kantz and another, turns on the question of lien. There the judge below decided, “that the warrant of the commissioners to the collectors, was a lien upon the personal property of the person charged with the payment of taxes, for three years.” This the court reversed, and rightly, because the acts of assembly do not make it a lien. On the warrant, a lien attaches at the time the levy is made and the property seized and taken in execution by the collector. Had the collector authority to levy? this is the true question in the case before the court. That he had, is abundantly clear, from an examination of the acts referred to.</p> <p>The warrant .issued by the commissioners, first required the collector to demand and receive the amount charged. Second, it required that on a day certain, the collector should meet the commissioners to correct mistakes; again, the collector is to demand payment, and if not paid within thirty days after demand, he is to levy the tax. And lastly, he is required to settle the whole amount of the duplicate in three months after the date of the meeting. The time seemed too limited, and it was, in numerous instances, impossible for collectors to succeed in collecting and paying over the whole amount of the duplicate, in the time specified. A practice then crept in, by which collectors sued delinquents in their own name, and recovered the taxes. This led to great litigation and accumulation of costs. To relieve the collector, and put an end to a vicious practice, the act of 1822 extended the time to three years from the date of the warrant, during which the collector should have power and authority to levy and make seizure under the warrant.</p>

This was an action of ejectment by John Glenn, Esq. against Samuel Ruby. The parties agree to the following facts, and that they be considered in the nature of a special verdict, upon which the court will render a judgment, with leave to either party to sue out a writ of error.

This was an action of ejectment by James H. Speer against James H. Stewart, for two hundred acres of land. The jury found “ for the plaintiff one hundred and fifty acres, part of the land claimed in the writ, and not guilty as to the residue,” upon which judgment was rendered. This was the only error relied upon. cited, 10 Serg. & Rawle 153.

<p>ERROR to the common pleas of Lebanon county.</p> <p>This was a feigned issue, directed by the orphans’ court to the common pleas of Lebanon county, in which Jacob Hoak and others were plaintiffs, and Michael Hoak and others were defendants. In this court the form of the issue did not appear, but it was, in substance, to ascertain the truth and validity of certain entries, in a book, purporting to have been the entries of advancements made by George Hoak deceased, to his children, and referred to in his will.</p> <p>The plaintiffs’ counsel offered Jacob Hoak, one of the plaintiffs, as a witness, he having previously assigned all his interest in the estate to Jacob B. Weidman, Esq. Defendant objected on the ground of his liability for costs. The plaintiffs then paid into court 50 dollars to cover all costs that had or might accrue, and agreed to pay any costs beyond that sum, if any greater amount should accrue. The court then overruled the objection to the competency of the witness, and sealed a bill of exceptions.</p> <p>After the examination of the witness in chief, the defendants proposed to ask the witness “ Whether the 600 pounds charged respectively to George, Michael and Margaret, were actually given, paid or advanced by the testator to them, or only 400 pounds to each of them,” in order to show that the charges were made without any gift or actual advancement of money beyond the 400 pounds, and therefore not charged within the meaning of the will, which was in these words: “ Each, however, to be charged in the distribution with what I have given them or shall have given them at the time of my death, and with which I have charged them in my book, and in my foregoing will and testament.”</p> <p>This evidence was objected to on the ground of its being irrelevant, because the charges in the testator’s book were conclusive. The court sustained the objection, and the defendants excepted.</p> <p>The plaintiffs then offered Christina Kreider as a witness : she was a grand-daughter of, and whose mother survived, the testator: her father, still living, had assigned all his interest in the estate of the testator to John Smith, in trust for his children, and, in order to make this one a competent witness, John Smith made an absolute assignment to Henry Strohm. The court then overruled the objection to the competency of the witness, and the defendants excepted.</p> <p>The several exceptions were the subjects of the assignments of error.</p>

<p>APPEAL and certiorari to the orphans’ court of Lancaster county.</p> <p>John Shenck, one of the executors of Abraham Herr, presented an account to the orphans’ court, in which he charged himself with the amount of the inventory of the estate, 52,557 dollars, and prayed a credit for it, as having gone into the hands of his co-executors; also with some items of mistake in the inventory, and then asked a credit for upwards of 2000 dollars, a debt due to himself. The account was passed by the orphans’ court without exception. The heirs appealed, and in this court filed these exceptions :</p> <p>1. The court erred in permitting John Shenck, one of the executors of Abraham Herr deceased, to exhibit any administration account on said estate, as his co-executor, with his full knowledge and consent, had previously settled the estate fully, and no assets, as appears from his account, had ever come to his hands.</p> <p>2. The court erred in allowing any credit for the 45,283 dollars 84 cents, and for 2198 dollars 89 cents, and for 375 dollars, and for 331 dollars 25 cents, and for 336 dollars; for 1375 dollars, for 829 dollars SO cents, and for 200 dollars, for his time, trouble and expenses, as the accountant lost no time, had no trouble, and was put to no expense whatever; they also erred in allowing any part of the credits in said account, as the accountant took no part whatever in the administration of the estate of said Abraham Herr deceased.</p> <p>The court referred the account and exceptions to J. K. Findlay, I. Carpenter and John Mathiot, Esqrs., who made the following report:</p> <p>That they met at the house of William Cooper, in the city of Lancaster, on Friday, the 19th day of June 1S35, in the presence of the accountant and Benjamin Herr, one of his executors, and their respective counsel.</p> <p>Whereupon, the counsel for the accountant, objected to the auditors taking cognizance of the matters, which, on their application had been referred to them; contending that, as the account had been confirmed by the court below, without any exceptions being taken to it, and the supreme court had decided that they would not notice any exceptions which were not made in the orphans’ court, we were bound by the decision, and could not listen to the exceptions which had been referred to us. Whatever may be the decisions of your honours, it is sufficient for the auditors that you have taken cognizance of the exceptions in this case, by referring them to us.</p> <p>The counsel for the accountant then offered John Shenck, the accountant, as a witness, to prove thus: “Fifty shares of stock in the Lancaster bank, were sold by him to his father-in-law, the testator, September 23d, 1823, and never paid for, in support of the items of credit 1375 dollars and 829 dollars 80 cents.</p> <p>To which the counsel for the exceptant objected, and the objection was sustained by the auditors.</p> <p>First exception. The auditors cannot deny the right which John Shenck’s office of executor gave him to settle an account, nor can they see how the orphans’ court could prevent him from exhibiting his account in the register’s office, nor why the same court should refuse to pass and confirm an account, to which no exceptions were taken.</p> <p>Second exception. The auditors are of opinion, that the account was settled for the sole purpose of including in it the items of 1375 dollars and 829 dollars 80 cents, a claim which the accountant had against the estate, and which was contested. Indeed, it was so stated by his connsel. No evidence having been given to the auditors in support of the said items, they are disallowed, as well as the other items mentioned in the second exception, and the exception is sustained.</p> <p>All which is respectfully submitted.</p> <p>Exceptions to the report of auditors.</p> <p>First. The auditors erred in taking cognizance of the matters contained in the exceptions filed by the counsel of the appellant in the supreme court, because the administration account of John Shenck, was exhibited to and confirmed by the orphans’ court of Lancaster county, without any exceptions being filed thereto.</p> <p>Second. The auditors erred in refusing to hear John Shenck, with regard to his account, and they also erred in sustaining the second exception filed in the supreme court, to the account of John Shenck.</p> <p>Third. The court had no jurisdiction in referring the said account to auditors.</p>

<p>When a county is divided, and a new county formed out of one part, and the act erecting the new county makes no provision on the subject of keeping alive the lien of judgments upon lands lying in the new county, the lien of such judgments will either continue without revival, as at common law, previous to the act of 1798, or their lien will be preserved by revivals in the old county, without the service of the process in the new county.</p> <p>The act of 1st April 1823 applies only where the testatum execution creates the lien, and not where it is used merely to effect a sale of the lands. Hence the lien of a judgment in the old county, is not effected by the lapse of five years from the entry of the testatum fieri facias in the new county.</p>

William Downing and Gainor Moore had settled their administration account of Samuel Downing’s estate. It being alleged by the heirs that the administrators had received moneys with which they had not charged themselves, they petitioned the court for a citation to them to appear and settle a supplemental account: in answer to which the administrators said that no estate had come to them since their account was settled.

THIS was an appeal by Caroline E. Briggs, administratrix of David M. Briggs deceased, who was the guardian of the minor children of Joseph Briggs deceased. Held: and by whose order and direction they delivered products thereof for four years, from the year 1817, to the said Joseph Briggs one of the guardians of your petitioner and his said brother and sister.

<p>The court having refused to relieve the defendant on a bail bond suit, he cannot avail himself of the facts submitted on such application, as a defence to the action, under the plea of payment with leave, &c.</p> <p>The only direct defence to such an action is performance of the condition, which, however, may be enlarged, pursuant to the statute 4 Anne, c. 16.</p>

This was an action on the case by Martin Carl, guardian of Mary Carl, against John Wonder, intermarried with Mary Carl. The' material facts of the case were these: The plaintiff, having certain claims in right of his ward, employed counsel to prosecute them, and made an agreement with them to pay them for their services.

This was an action on the case by Simon Gratz, Hyman Gratz and Jacob Gratz against The Farmers’ Bank of Lancaster. Simon Gratz and Brothers, the plaintiffs, had a mortgage dated the 10th of October 1817, on a house and lot in the city of Lancaster, which was given to them by Samuel White, to secure the payment of the sum of 11,360 dollars.

This was an action on the case for a nuisance, by Abraham Long against John Long, for erecting a dam, by which the water was swelled back upon the plaintiff’s mill-wheels.

<p>WRIT of error to the quarter sessions of Lebanon county.</p> <p>This was a proceeding instituted upon the petition of Christian Ley to recover damages from the Union Canal Company in which the following facts appeared:</p> <p>An inquisition, by which damages were assessed, was returned November sessions 1827. Defendants filed exceptions to the whole proceedings. Plaintiffs filed exceptions to the inquisition. The case of Adam Bassler v. same defendants, returned at same sessions, was excepted to by defendants also. It was agreed that the case of Christian Ley should depend on the decision of certain exceptions to the proceedings in Bassler’s case. The court of quarter sessions of Lebanon county being of opinion it had not jurisdiction of the case, made an order dismissing the case of Bassler. The case was removed by certiorari to the supreme court, where the order of the' sessions was quashed, and record remitted with directions to the sessions to proceed in the cause. In the mean time, whilst Bassler’s case was depending in the supreme court, viz., in October 1832, Christian Ley, the plaintiff in this case, died. The sessions made an order dismissing Bassler’s case for want of jurisdiction, in January 1831. It was removed to the supreme court by certiorari to May term 1831, and in July 1834, the supreme court quashed the order of sessions and remitted the record to the court below for confirmation.</p> <p>After this, Ley’s administrators moved the court of quarter sessions to enter judgment on the inquisition nunc pro tunc, neither party insisting further on the exceptions that had been filed. The motion for judgment nunc pro tunc was resisted on the ground that plaintiff had himself arrested, by his exceptions, further proceedings in the cause.</p> <p>To this it was answered that defendants had been in the occupancy of plaintiff’s lands so far as they had appropriated them for their canal, for which the damages were claimed during the whole time the proceedings were suspended, and from the commencement of the proceedings till the present time. That the case had an analogy to the case of the sale of land, where the purchaser takes possession and receives the profits. The occupancy was not denied, but its analogy to the case of an ordinary purchase of land, where purchaser takes possession and enjoys the profits, was denied. This is alleged to be a case in which the plaintiff asked the court by the exercise of its equitable powers, to relieve him from the consequences of his own act. The court (Blythe, President) refused to enter judgment nunc pro tunc, because 'the plaintiff’s exceptions to the inquisition were not withdrawn until they moved for judgment nunc pro tunc, and the court, therefore, entered judgment, as of the time of confirmation.</p> <p>Error assigned.</p> <p>The court of quarter sessions erred in not entering judgment on the inquisition and proceedings nunc pro tunc.</p> <p>cited Sug. Vend. 319; Jones v. Ringold, 1 Yeates 480.</p> <p>cited 1 Har. Dig. 1362; 2 Vez. Jun. 157, 164; 2 Fend. Eq. 439; 1 Penns. Blac. 244; Arch. Pr. 264; 2 Caine’s Cas. 48.</p>

This was a scire facias upon a mortgage by Daniel Fulton, administrator of Ann Hart deceased, against Jacob Hart.

Trover by Jacob Shoemaker and others, trustees under a domestic attachment against Frederick Wolfersberger against Benjamin Kunkle, for three horses and a gig.

<p>Executors cannot require security of a legatee for the return of goods specifically bequeathed to him for life, with an executory limitation over ; but if the bequest be of money, with the same limitation over, the legatee will not be entitled to recover it without first giving security to the executors for its return, upon the death of the legatee.</p>

<p>The altercations and admissions of a party before a justice, are to be taken subject to his allegations in evidence of the claim. Hence an acknowledgement that a debt is just, but that another ought to pay it, accompanied by a plea of the statute of limitations, will not take the case out of the statute.</p>

Michael Clepper against Jacob Livergood. Case stated as if found by special verdict. In 1814, Rudolph Herr died intestate, seised of a farm in York county, and leaving a widow and five children, viz., John, Joshua, Susan, Martha and Ann, in possession of the premises. In 1824, Susan married the plaintiff in this suit, and in 1829 died, leaving her husband and three children, viz , Ann, Louisa and Rudolph H. Clepper.

APPEAL by Thomas Cochran, a judgment creditor of George Thorp, from the decree of the court of common pleas of Perry county, appropriating the proceeds of the sale of his real estate. The only question argued in this court, was whether burr millstones are the subject of mechanic’s lien. cited Morgan v. Arthurs & Co., 3 Watts 140.

<p>ERROR to the district court of Lancaster county.</p> <p>This was an action of assumpsit for goods sold and delivered, money lent, &c. by John Good against Joseph Good, in which the defendant pleaded payment, and this special set-off: that the plaintiff was indebted to him by recognizances in the orphans’ court to an amount exceeding 6000 dollars. To this the plaintiff replied, that a suit had been brought against him on this recognizance, which had been referred to arbitrators,- under the compulsory arbitration law, and that there had been an award made in favour of the plaintiff in that suit, for 1524 dollars 60 cents, from which the said plaintiff had appealed, and the said suit was yet pending and undetermined. The defendant demurred to this replication, and the plaintiff joined in the demurrer. The court gave judgment for-the defendant. This was the error assigned.</p> <p>relied upon the great inconvenience which would result from permitting a set-off to be allowed after an award had been made and an appeal entered. He cited the Arbitration act of 1810, sects. 11, 12, 13, 14; Franklin v. Mackey, 16 Serg. & Rawle 117; Martin v. Ives, 17 Serg. & Rawle 364.</p> <p>cited Bakerville v. Brown, 2 Burr. 1229; Mort. on Set-off 38; 6 Law Lib. 9; Baker v. Graham, 3 Wils. 396; Waln’s Assignees v. The Bank of North America, 8 Serg. & Rawle 88; Metzgar v. Metzgar, 1 Rawle 227.</p>

This was a scire facias sur mechanic’s lien, by William Buchanan against John Zeigler, contractor, and Jacob Kinsley owner, in which the following special verdict was found.

This was an action upon a bond, and the style of the suit was ; James Duffy and Janies Mehaffy, for the use of Henry Haines, Jun., so far as relates to the interest of James Duffy, in the bond of indemnity given to them by John Pedan and Joseph Lytle, which said James Duffy has assigned to Henry Haines, Jun., so far as relates to his interest therein, against Joseph Lytle.

On the 13th of September 1798, Daniel Eyster, the testator, died at his residence on. a farm situate in township, Adams county, then a part of York county. On the 17th of September 1798, a caveat was entered against the probate of his will. On the 4th of October 1798, the register of York county directed an issue of devisavit vel non, to the court of common pleas, and granted letters of administration of the estate of decedent, pendente lite.

George Ege against Peter Ege. Issues directed by the coui't of common pleas to try the right of the respective claimants to the proceeds of the sale of the personal estate of John M. Woodburn, sold by the sheriff upon executions.

<p>APPEAL from the decree of the court of common pleas of Dauphin county appropriating the proceeds of the sale of the real estate of David Rank.</p> <p>During the trial and argument of this case in the court below, J. A. Fisher and M’Clure, counsel for some of the creditors of David Rank, asked the court to direct an issue to try the facts involved in the case, which the court refused on the ground that the necessity for it did not appear. This was the only point argued in this court.</p>

<p>State laws have no operation, proprio vigore, upon the process or proceedings of the courts of the United States. 'Hence an associate judge of the state court cannot discharge from arrest, under the insolvent laws of the state, one who is in custody upon process from the United States'Court.</p> <p>If a jailer suffer a prisoner to escape, without the sheriff’s knowledge, and the sheriff be thereby made responsible, the jailer is liable to him in an action on the pase. Nor will it relieve the jailer from liability that he took advice and acted with good faith in the matter.</p> <p>If an action for an escape be brought in debt, the jury, if they find for the plaintiff, must find the whole debt and costs; but if brought in case, they may find such da. mages as they think proper.</p> <p>If a payment be made by the sheriff, as a compromise of the action against him, without consulting the jailer, the amount recovered from the sheriff is not the legal measure of damages which he is entitled to recover from the jailer.</p>

Jacob Lindemuth had filed an account ofhis administration of the estate of Peter Lindemuth deceased, after which, upon being called upon by I. T. Anderson, guardian of one of the heirs, he assigned a reason why he could not have his account ready for settlement at the next court. But at the next court the account was regularly passed by the court; from which the guardian ajppealed to this court. asked the court to refer the account to auditors out of this court.

<p>Nothing short of an exclusive perception of profits by one tenant in common, for .twenty-one years, would justify the court in submitting to a jury to presume an ouster or disseisin, for the purpose of defeating an action of partition.</p> <p>The statute of frauds and perjuries embraces a transfer by one tenant in common to his co-tenant, of his interest in the land; nothing, therefore, but a written transfer, or a parol sale, accompanied with visible, distinct, exclusive possession under such purchase, accompanied by the payment of money, or the making of valuable improvements by the vendee, would defeat the right of the co-tenant.</p>

Debt on a note under seal by Henry Denlinger for the use of James Buchanan against Jacob Wurtz. The note upon which the action was brought was given by Wurtz to Denlinger, in consideration of the sale of a tract of land by the latter to the former. Denlinger transferred the note to Buchanan, for a valuable consideration.

<p>THE Commonwealth ex relatione William Whiteside against John Mathiot, mayor of the city of Lancaster. This was an application to this court for a rule upon the respondent, to show cause why a mandamus should not issue to them to comply with the direction of the following resolution, passed by the select and common council of the city.</p> <p>Resolved, That the mayor be, and he is hereby authorised to issue upon the' credit of the city, certificates of loan to Thomas Jefferies, chairman, and William Whiteside, secretary of the railroad committee, for the sums of 200 dollars each, and like certificates of loan for the sums of 100 dollars each, to the six remaining members of said committee, redeemable in one year, without interest, and being in full for services rendered by said committee.</p> <p>The rule was founded upon the following affidavit:</p> <p>Lancaster county, ss. — Before me, an associate judge of the court of common pleas of said county, personally appeared Ingham Wood of the city of Lancaster, who being duly affirmed according to law, deposeth and saith, that by a joint resolution of the legislature of the 21th of April 1832, the corporation of the city of Lancaster were allowed to change the location of the Philadelphia and Columbia Railroad, between the little and big Conestogo bridges, so that the same should pass through the city of Lancaster, at or near the intersection of North Queen and Chestnut streets, under certain provisoes and conditions, which were complied with, and the alteration has been completed.</p> <p>On the 1st of May 1832, the select and common councils of the said city, by a joint resolution, appointed a committee, consisting of three members of each council, whose special duty it should be, forthwith to procure Joshua Scott to survey and locate such route for the proposed alteration of the Columbia and Philadelphia Railroad, as to the committee and Mr Scott may be deemed most beneficial to the city. The deponent was appointed one of this committee on behalf of the common council. On the 7th of May 1832, one member from each council was. added to this committee, which was called the railroad committee; and by the same resolution, the committee were directed to report as speedily as practicable to the councils, the proposed route of the aforesaid alteration as surveyed and located by Mr Scott, together with an estimate of the probable expense of said route, and also the damages which the city might in consequence of its faith already pledged, be called on to pay. -Deponent attended assiduously, and with considerable sacrifice of his own interest, to the duties imposed upon him as member of the said committee in assisting in the survey, location and construction of the said alteration in the railroad, and settling claims of damages occasioned thereby. In the performance of his duties as member of the committee, besides attending many deliberative meetings of the committee, he spent about one hundred days on the road, during many of which he was employed from morning till night in fatiguing manual labour. The expense of superintending the construction of the alteration of the railroad, the labour of which fell upon deponent, and the other members of the committee, was estimated by Moncure Robinson, Esq., an engineer employed by the state to estimate the cost of the forementioned alteration, at 6848 dollars 9 cents. On the 3d of February 1835, the select and common councils of said city, by a resolution adopted in select and common council, authorised the mayor of the said city to issue upon the credit of the city, a certificate of loan for the sum of 100 dollars to deponent, redeemable in one year without interest, and being in full, for services rendered by him as member of the railroad committee. This certificate of loan deponent has never received, and John Mathiot, Esq., mayor of the said city, refuses to comply with the said resolution, and to issue the same.</p> <p>Ingham Wood.</p> <p>Affirmed and subscribed, May 6th,-1836, before me,</p> <p>Samuel Dale.</p> <p>To which the following answer was made by the mayor.</p> <p>John Mathiot, mayor as aforesaid, in answer, &c. states as follows: that the railroad committee of the select and common councils of said city, consisted of Messrs Thomas Jefferies, Godfried Zahm, Jacob Dorwarfr and William Whiteside of the select council, and Messrs Ingham Wood, Jacob Snyder, Timothy Rogers and Martin Shreiner of the common council, six of whom were appointed on the 1st and two on the 7th of May 1832, and continued as said committee until the 8th of February 1833, when a joint standing railroad committee was appointed in the place of the aforesaid committee, to continue until the next annual cityj- election, the old members being all re-appointed on said committee, except Mr Dorwart, whose official term as a member of the select council had expired, and Henry Longenecker appointed in his stead. That the members of said committee, on part of the common council, had been re-elected common councilmen just prior to their re-appointment as members of said committee. That on the 7th of February 1834, a standing railroad committee was appointed to continue until the Friday after the annual city election in 1835, if so long necessary, and the members of the last year’s committee appointed on this, and the members on part of common council, re-elected councilmen a short time prior to their re-appointment on said committee. That on the 6th of May 1834, Ingham Wood, one of said committee, resigned his seat as a member of the common council, and Mr Charles Gillespie was appointed on said committee to fill the vacancy occasioned by said resignation.</p> <p>That on the 3d of February 1835, when the resolution was passed directing the mayor to issue certificates of loan to each of the members of said committee, and in full of all services rendered by them, the committee then consisted of Messrs Jefferies, Zahm, Whiteside, Longenecker, Snyder, Rogers, Shreiner and Gillespie. Ingham Wood was not at that time a member of said committee.</p> <p>This respondent would further state, that the members of council serve without compensation; and the members of said committee have been elected councilmen under this regulation, and a number of them re-elected, and also appointed and reappointed members of said committee under the same.</p> <p>That the circumstances of said resolution having been acted upon and passed the evening of the election for new councils, and after the closing of the poll, presented the matter in such a doubtful and unprecedented character, that the undersigned conceived it to be his duty to withhold his action thereon, until legally tested by a judicial tribunal of his country.</p> <p>City of Lancaster, ss. — John Mathiot being duly sworn according to law, doth depose and say, that the facts, as set forth in said answer, are true to the best of his knowledge and belief.</p> <p>John Mathiot.</p> <p>Sworn and subscribed this 10th of June 1836.</p> <p>Coram, Henry Keeper.</p> <p>contended that the right was indisputable, and there was no remedy to enforce it but by mandamus, which is the proper test of its propriety, and cited 4 Bacon’s Ab. 496, 518 ; Cowp. 378; Green v. The African Methodist Episcopal Church, 2 Serg. & Rawle 255 ; Duffy v. The Harrisburg and Carlisle Turnpike Company, 9 Serg. & Rawle 59.</p> <p>The twenty-fifth section of the act of incorporation restrains the councils from granting money in compensation of services rendered by members. Debt would lie on the resolution, and if it would, the' court will not. award a mandamus. 3 Tuc. Blac. 109; Commonwealth v. The County Commissioners, 2 Penns. Rep. 518; Commonwealth v. Rosseter, 2 Binn. 360.</p>

- APPEAL from tbe decree of the orphans’ court of York county. Jacob Hise and John Lowman, administrators of John Hise, filed an account of their administration of the estate, to which exceptions were filed, and the same were referred to auditors, who made a report, to which exceptions were again filed; and the same were again referred to other auditors, who made a report, which was confirmed by the orphans’ court.

The administrators of Samuel Ilgenfritz, Sen., against the administrator of Samuel Ilgenfritz, Jun. Samuel Ilgenfritz, Jun., died on the 1st of November 1834, indebted by three bonds to the plaintiff, dated the 1st of April 1831, for the payment of 600 dollars each on the 1st of April 1833, the 1st of April 1834, and the 1st of April 1836.

<p>ERROR to the common pleas of Berks county.</p> <p>This was an action of covenant by Benneville Keim, executor of Andrew Fichthorn deceased, against Daniel Fichthorn and George Boyer. The facts of the case are sufficiently stated in the opinion of the court.</p>

The only question which arose in this case was, whether a scire facias post annum, et diem issued within five years from the rendition of a judgment upon a former scire facias, and after the period of five years had elapsed from the return day of the writ, would preserve the lien of the judgment. The court (Blythe, President) ruled that it would. cited Arrison v. The Commonwealth, 1 Watts 397; Penn v. Hamilton, 2 Watts 53; Vitry v. Dauci, 3 Rawle 9; 3 Penns.

<p>A vendor of land, who, by the agreement, was bound to make a deed upon the payment of the purchase money, cannot recover in an action of ejectment against the vendee to compel the payment of the purchase money, without having tendered a deed before suit brought.</p> <p>A vendor of land having by his agreement covenanted to convey, upon the payment of a certain portion of the purchase money, and that portion having been paid, lie cannot maintain ejectment against the vendee, to compel the payment of the residue of the purchase money, although he still retains the legal title.</p>

<p>ERROR to the common pleas of Bedford county.</p> <p>This was aii action of ejectment by George Mulhollan, Jun., against Owen M’Donald and James Fenlon, for a tract of land. The plaintiff claimed under a warrant to George John, for four hundred acres, dated the I2th of March 1794, and the purchase-money, paid by James Wilson the 12th of August 1794, who, on the 15th of August 1794, mortgaged it, with other lands, to Kearny Wharton and others. The plaintiff then offered in evidence a judgment on the said mortgage, confessed the 6th of August 1821, by Thomas M’Kean Pettit, administrator of James Wilson, to which the defendants objected, on the ground that the letters of administration to Mr Pettit were not shown, and that the great lapse of time between the date of the mortgage and the judgment upon it, rendered it objectionable. The objections were overruled, and the testimony admitted.</p> <p>The plaintiff then gave in evidence proceedings upon the mortgage and sale of the land to Abraham Kerns, on the 28th of January 1830. On the 15th of February 1831, the survey was made, and accepted the 21st.of February 1831. The title was then regularly made from Kerns to George Mulhollan, the plaintiff.</p> <p>The defendant claimed, title under Hugh Meloy, who made an improvement on the land, in the spring of 1824, and resided on it for about two years, during which time he built a cabin, and made a small improvement, and raised potatoes and some grain. When he quitted the cabin, he left some articles of furniture in it, and locked the doo.r, and appointed an agent to rent it, and it was vacant for five years, and until about the time when this suit was brought.</p> <p>Upon this evidence the court (Thompson, President) charged the jury, that the settlement of Meloy was abandoned, and his title was not in the way of the plaintiff’s recovery.</p> <p>cited 3 Caines’ Rep. 222.</p> <p>cited, Pfoutz v. Steel, 2 Watts 409.</p>

<p>APPEAL by the executors of Joseph Hassler, from the decree of the orphans’ court of York county of the 7th of August 1835.</p> <p>In 1813, Christian Hassler died intestate seised of real estate in the county of York, and leaving a widow and eight children, among whom was a daughter, Margaret, then a minor. On the 5th of November 1813, the orphans’ court, on the petition of one of the sons, (Christian) awarded an inquest to make partition of the real estate of said deceased. The inquest divided said land into several tracts, one of which, marked No. 1, was valued at 4091 dollars.</p> <p>On the 10th day of May 1814, the orphans’ court decreed No. 1 to Joseph Hassler, son of said Christian Hassler deceased, in the following manner: and it is further ordered and decreed by said court, that the said Joseph Hassler pay unto Magdalena, the widow of said deceased, yearly the sum of 81 dollars 91 cents during her life; that he retain in his hands 340 dollars 38 cents, in full of his share of the valuation of said tract of land; that he pay unto Peter Hassler, Christian Hassler, Michael Hassler, George Hassler, John Hassler, Margaret Hassler and Mary Hassler, or unto the guardian of such of them as are minors, each the sum of 340 dollars 77 cents, and after the death of the widow, the further sum of 170 dollars 38 cents in one year, with interest from date, in full of their respective share in said valuation money of tract No. 1. Same day Joseph Hassler and Jacob Coleman acknowledged a recognizance to secure said money.</p> <p>On the 13th of April 1818, Joseph Hassler paid to Frederick Glatfetter, husband of Margaret, one of the daughters of Christian Hassler, the said sum of 340 dollars and 77 cents and interest, and executed to the said Frederick a bond with surety for the 170 dollars 38 cents, payable after the widow’s death, on which suit was brought and judgment recovered in 1839 against Joseph Hassler, whereupon the said Frederick Glattfetter executed a full release to said Joseph for all money due under said decree.</p> <p>On this bond suit was brought and judgment recovered against said Joseph, before the amendment of said decree hereafter mentioned.</p> <p>On the 6th of August 1833, George Byertz stated by affidavit to the orphans’ court, that the said Margaret died intestate in January or February 1814, before the said real estate was decreed to Joseph Hassler, leaving to survive her a daughter, named Polly, with whom he is intermarried; that in the decree of the land to Joseph, the name .of Margaret, who was dead, is used, and a share decreed to her instead of her daughter and heir, Polly. Whereupon the court granted a rule on all the heirs and all 'other persons interested in the estate of Margaret Hassler, to appear on'the 17th of September next, to show cause why the share decreed to Margaret should not be decreed to Polly, now Polly Byertz, the only child of Margaret.</p> <p>April 8th, 1834, in the matter of the rule on those interested in the estate of Margaret Glatfetter, to show cause why the name of Polly Byertz should not be inserted in the place of Margaret Hassler, the court, at the instance of John Evans, Esq., direct an issue to the district court on the petition, to.try the facts.</p> <p>George Byertz v. Frederick Glattfetter. In the district court of York county, March term 1834, issue directed by the orphans’ court to try the truth of the facts stated in the affidavit of George Byertz, presented to the orphans’ eourt on the 6th of August 1833.</p> <p>And now, to wit, November 22d, 1834, a jury of the county being sworn, do say that they find for the plaintiff, November 26th, 1834, judgment absolute. .</p> <p>In the orphans’ court of York county, April 7th, 1835, in the matter of the estate of Christian Hassler deceased, on motion of John Evans, Esq. the rule of the 6th of August 1833, is made absolute, and the deerees on No. 1 and 3 of said estate are directed to be amended according to the finding of the jury, by inserting in the place of said Margaret’s name, the name of Polly, now Polly Byertz, the only child of said Margaret.</p> <p>At the time of the decree of the orphans’ court awarding the inquest to make partition, Margaret Hassler was the wife of Frederick Glattfetter; the said Frederick is still living.</p> <p>May 8 th, 1815, letters of administration were granted to Frederick Glattfetter on the estate of his deceased wife, Margaret, late Margaret Hassler. To August term 1815, Frederick Glattfetter brought a suit as administrator of his wife Margaret, on the recognizance in the orphans’ court, against Joseph Hassler. On the Sth of August 1815, Joseph Hassler confessed judgment, and in March 1816 paid the amount of said judgment to Margaret Hassler’s administrator, Frederick Glattfetter.</p> <p>Errors.</p> <p>1. That the orphans’ court erred in altering the decree of 1814, twenty years after the money had been paid under it, by Joseph Hassler.</p> <p>2. That said decree of the 7th of April 1835, is erroneous even if the court had power to make it, inasmuch as Frederick Glattfetter in any state of facts is entitled to the money or its interest during his life.</p> <p>3. That Joseph Hassler, or his executors, should have been made a party to the issue granted by the orphans’ court and subsequent proceedings.</p>

This was an action of ejectment by Marcus Martin’s executor against Daniel Hain and others, to compel the payment of purchase money. The facts are sufficiently stated in the opinion of the court. whom the court declined to hear.

This was originally a proceeding before two justices of the peace, by John Knerr against George Stoebler, to obtain possession of a tract of land, purchased by him at sheriff’s sale. The cause depended upon the construction of a deed and article of agreement between Michael Redel and George Weidel.

<p>ERROR to the common pleas of Dauphin county.</p> <p>This was an action on the case, by Herman Alricks and Benjamin Parke, Esqrs., against Philip Newbaker, administrator of Jacob Newbaker deceased, to recover compensation for professional services, rendered in a proceeding in the orphans’ court, in partition of the real estate of Jacob Newbaker deceased. The evidence was, that the plaintiffs, at the instance of some of the heirs of the deceased, applied for, and obtained a writ of partition, and valuation of the real estate, and the matter was proceeded in to an order of sale, and a sale by the administrator, the defendant, which was confirmed, and that the proceeds were in the hands of the defendant. The objection to the plaintiff’s recovery was, that they had not been employed by the defendant. The only evidence which tended to show that the defendant had employed the plaintiffs was, that a return to an order of sale, signed by the defendant, was in the handwriting of one of the plaintiffs, and another return to second order was in the handwriting of the other plaintiff.</p> <p>The defendant’s counsel submitted the following points to the court, upon which they were requested to charge the jury.</p> <p>1. That the plaintiffs cannot, in law or equity, recover the fees claimed from the estate of Jacob Newbaker, because there is no privity of contract between them and the estate, and because there exists no statutory provision for the payment of attorneys’ fees in such cases.</p> <p>2. That the defendant cannot be made personally liable to the plaintiffs for these fees, because they have distinctly admitted that he did not employ them or request them to perform the services; because he has personally derived no benefit from them; because he has made no promise to pay for them; because no consideration whatever'has resulted to him upon which an assumpsit against him personally can be founded.</p> <p>3. That the plaintiffs, not being partners in the practice and profession of the law, cannot recover against the defendant in any character, inasmuch as no express promise to pay them has been shown, and inasmuch as they have shown no joint consideration from them to the defendant, which is necessary to support an implied promise, where the plaintiffs are not partners.</p> <p>4. That the plaintiffs having declared for professional services rendered by them to the defendant, and upon his retainer, cannot recover in this suit, because no retainer of them by the defendant has been proved, nor has any advantage resulted to the defendant from said services, which will authorize the jury to imply or infer a retainer.</p> <p>5. That the plaintiff cannot recover upon the first count in the narr., which is against the defendant as administrator, because there is no law making the estate of decedent liable for these charges; nor is he liable as administrator, for he is declared against personally; ,nor can they recover on the second count, for money had and received, not having shown that defendant has received money, which, by law, they are entitled to; nor can they recover on the third count, because they rendered no services for defendant, at his request, nor has he availed himself of any advantages from their services, which are a consideration entitling them to recover against him personally, as they must if at all on this count.</p> <p>6. That the plaintiffs cannot, at law or in equity, recover against the defendant, under the pleadings and testimony in this cause.</p> <p>The court referred the facts to the jury, to determine whether the plaintiffs had been employed by the defendant, with instructions to find accordingly.</p> <p>The jury found for the plaintiffs.</p> <p>cited Whitehill v. Wilson, 3 Penns. Rep. 405; Stouffer v. Latshaw, 2 Watts 165; to show that the testimony should not have been admitted, because it did not tend to establish the plaintiffs’ claim.</p>

The real estate of Jacob Briggans was sold by the sheriff, and the money brought into court for appropriation. The first judgment was upon the bond of Jacob Briggans, with a warrant to confess judgment, but the judgment was, by mistake, entered against John Briggans. The court (Blythe, President) were asked to amend the entry, by the bond, which they did, but not to the prejudice of the subsequent lien creditors, to whom they decreed the money in court to be paid.

<p>A testator devised to his son John certain lands “valued unto him at the sum of 3350 pounds; 1000 pounds, part thereof, to remain charged on the land devised unto my said son John, during his natural life, and at his death, to be paid to whom my said son John shall bequeath the same, in and by his last will and testament.” John made his will bequeathing the said 1000 pounds to A. B. and C., and afterwards sold the lands devised to him for their value, and died without revoking his said will: Held, that the bequest by the first testator was of a power of appointment, and that the legatees of John were entitled to recover in an action for the legacy against the executors of the first testa'tor, with notice to the terre-tenants of lands_d*»charged.</p> <p>The subject of John’s testamentary power was a chattel, separated from the land by his father’s will. The probate of John’s will was, therefore, conclusive, and could not be impeached in an action by his legatee to recover the legacy.</p>

Action on the case for money had and received by Richard Rogers and Robert B. Rogers, trading under the firm of R. & R. B. Rogers for the use of Samuel Grubb against Peter Roop. The defendant, Peter Roop, as constable had executions in his hands against R. & R. B. Rogers as partners, to the amount of 200 dollars; and at the same time had executions against Robert B. Rogers to the amount of 233 dollars and costs.

This was action of ejectment by John Shoenburger against Philip Becht. The warrants of the plaintiff and defendant were dated upon the same day, the 6th of February 1829. A caveat was entered and the parties were heard before the board of property who, on the 6th of April 1829, decided in favour of the defendant. This suit was not brought until the 31st of October 1831.

This was an action by Charles and Clement Brooke against Joseph Evans, Caleb Evans, and Amzi Babbit, in partnership under the name of Joseph Evans & Co., in which the following facts appeared.

This was an action of debt by John Gaullaher against Mary Gaullaher and Abraham Horbach, administrators of George Gaullaher, deceased, upon two notes under seal given by the intestate in his life time; the notes were each for the same amount and executed at the same time. “April 10th, 1.832,1 promise to pay to John Gaullaher or order 1000 dollars, as part of five such notes left him by my brother Thomas, as his legacy. Witness my hand and seal. “Geo.

<p>ERROR to the common pleas of Huntingdon county.</p> <p>Thomas Hamlin against David Hazard. Replevirf for a horse, in which these facts appeared.</p> <p>James Allen and Thomas Hamlin made' an exchange of horses in which Allen received the horse in controversy. In the evening of the same day Hamlin thought he was cheated, and so complained to Allen, when they agreed to rescind the bargain, upon Hamlin’s giving him three bushels of wheat. The parties separated, without a re-delivery of the horses. Allen, disregarding the contract of rescisión, sold the horse he got from Hamlin to Hazard the defendant. Subsequently, Hamlin tendered the wheat and demanded the horse; and then brought this action of replevin for him.</p> <p>The counsel for the defendant, in several points put to the court, upon which he requested the jury to be instructed, contended for this principle:</p> <p>That the contract of exchange was complete, and the right of property vested in the parties respectively: That the contract of rescission was executory and not binding upon the property, so as to enable the party to recover it specifically.</p> <p>The court was of a different opinion, and instructed the jury that the plaintiff was entitled to recover. Verdict for plaintiff.</p> <p>cited 1 Chit. Co. 90; 3 Blac. Com. 158; Roberts v. Beatty, 2 Penns. Rep. 67; Pritchett v. Jones, 4 Rawle 260; Dutilh v. Ritchie, 1 Dall. 171.</p> <p>cited Easton v. Worthington, 5 Serg. & Rawle 130; 2 Esp. Rep. 578; 3 Stark. 1637; Leeky v. M’Dermot, 8 Serg. & Rawle 500; Clemson v. Davidson, 4 Binn. 405.</p>

<p>In the settlement of an estate by an administrator de bonis non, cum testamento annexo, there can be no connection with the administration of the estate by the executor. If the account of the executor shall not have been finally settled, or if any error should have occurred in its settlement, it is the subject of settlement by, or correction at, the instance of his personal representative. It is error to blend the account of an administrator de bonis non, cum testamento annexo, with the account of the first executor.</p>

<p>WRIT of error to the common pleas of Dauphin county.</p> <p>The facts of this case appeared to be, that Robert M’Kee died intestate, and his estate was divided and appraised by a proceeding in partition in the orphans’ court, and one part of it was taken by David Dimpsey, in right of his wife, and he entered into a recognizance with David Patten as his security, to Sample M’Kee (who took the other and less valuable part), for one half of the difference, in value. A suit was brought upon this recognizance, by the executors of Sample M’Kee, against Dimpsey and Patten, pending which Dimpsey died, and a judgment was obtained against Patten, the survivor, for 982 dollars 99 cents, which the plaintiff assigned to Charles A. Snider, upon which an execution was issued, and defendant’s land levied and sold for 100 dollars, and the sheriff returned that the purchaser had not complied with the terms of sale. After this, Isabella Dimpsey, the wife of David Dimpsey, and heir at law of Robert M’Kee, died, and her administrator, Jacob Redsecker, applied to the orphans’ court for an order to sell her real estaté, being the same land her husband took at the valuation, in right of his wife, for the payment of debts ; in pursuance of which the land was sold for 1396 dollars 50 cents, and Joseph Hoffer became the security of the said administrator, for the faithful discharge of his duty, and payment of the money, &c.</p> <p>This, then, was an action by the commonwealth for Wightman and wife, who was surviving executor of Sample M’Kee, against Joseph Hoffer, co-recognizor with Jacob Redsecker, upon the recognizance of Redsecker, which was conditioned for the payment of the proceeds of the sale of Isabella Dimpsey’s estate, in which the plaintiffs claimed the amount of the recognizance of David Dimpsey, before referred to.</p> <p>In the court below two points were made by the defendant’s counsel. 1. That.the recovery in the action against David Patton, surviving David Dimpsey, was a bar to this suit. 2. That whether that suit was available as a former recovery or not, yet, the assignment of the judgment by the plaintiff to Charles A. Snider, precluded a recovery in this suit.</p> <p>The court below (Blythe, President) ruled both points against the defendant.</p> <p>There were cited, for the plaintiff in error, Downey v. The Bank of Greencastle, 13 Serg. & Rawle 288; Beltzhoover v. The Commonwealth, 1 Watts 126; Walter v. Ginrick, 2 Watts 204.</p> <p>For the defendant in error, Reed v. Garvin’s Executors, 7 Serg. & Rawle 354; Allen v. Reesor, 16 Serg. & Rawle 16; Kean v. Ridgway, 16 Serg. Rawle 60.</p>

The facts of this case and the principles relied upon are the same, as those stated in a former report of the case, in 3 Watts 477.

This was an action of ejectment by John Gloninger, Martin Meily and John Bickel, Sen., against John Goddard, Charles Bird, Joseph M’Eldridge, Benjamin Kugler and John Beck & Co., for four tracts of land in Lebanon county.

<p>Upon the settlement of a joint administration account by two executors, and the subsequent death of one of them, an action may be maintained against the personal representative of the deceased executor, to recover a legacy under the will of his testator, upon the allegation and proof, that funds for the payment of the legacy, came to the hands of such deceased executor separately.</p> <p>In an action against the personal representative of a deceased co-executor to recover a legacy, upon the allegation that the funds for its payment came to the hands of such deceased co-executor, the surviving executor is not a competent witness for the plaintiff.</p> <p>An action for a legacy is not embraced by the statement law, and a declaration must be filed.</p> <p>The statute of limitations is not applicable to an action brought to recover a legacy#</p>

<p>Upon the sale of the real estate of one of two partners, and the appropriation of the proceeds to the payment of a judgment against both, a subsequent judgment creditor of that partner whose separate estate was sold, is not entitled to be substituted as plaintiff in the judgment to which the money was appropriated, so as to enable him to proceed against the other partner, unless it shall have been made to appear, that he whose separate property was sold, was, at the time, the creditor partner of the firm.</p>

<p>A sheriff may be permitted to amend his return, when made under a mistake offact, if the application be made within a reasonable time: but after action brought against him for an escape, and issue joined, he will not be permitted so to amend his return to a capias ad satisfaciendum as to relieve himself from liability to the plaintiff: particularly when his reasons for making the amendment are predicated upon facts, which show, that at no time should he have been permitted to make the amendment.</p> <p>The attorney at law of the plaintiff has full power to discharge a defendant fi-om arrest upon a capias ad satisfaciendum issued by him, and the sheriff is bound to receive and obey his instructions.</p> <p>In an action against a sheriff for an escape, the defendant in the writ of capias ad satisfaciendum, who it was alleged had escaped, is a competent witness.</p> <p>If, in an action against a sheriff for an escape, he rely upon the fact, that the attorney of the plaintiff ordered defendant’s discharge, it should be clearly proved; and if it appear that the order was given after the escape, it will not relieve the sheriff.</p>

<p>ERROR to the common pleas of Dauphin county.</p> <p>This was an action of debt by Roland Curtin surviving John Fleming and James Smith for the use of the Clearfield academy, against John Groff administrator of Abraham Witmer in which the following statement was filed:</p> <p>“This suit is founded on a bond sealed and delivered by Abraham Witmer to the said Roland Curtin, John Fleming and James Smith, (which said John Fleming and James Smith are now deceased, leaving the said Roland Curtin, surviving obligee,) in the penalty of ten thousand dollars dated the 5th day of November, A. D. 1805, which said bond is conditioned among other things to pay or cause to be paid the sum of 1500 dollars for the use of the Clear-field academy, on the 1st day of May, 1812, and the said Roland Curtin avers that the said Abraham Witmer did not in his lifetime pay the said 1500 dollars, or secure the same according to the terms and conditions of his said bond. And the said Abraham Wjtmer having died, letters of administration with the will annexed W’ere issued to said John Groff, the defendant named in this suit, which said John Groff has received assets belonging to the estate of said Abraham Witmer, deceased, sufficient to pay and satisfy the balance due on the bond aforesaid, and the said Roland now suggests that since the death of said Abraham, payments have been made on account of said bond, leaving the balance now due on the same the sum of nine hundred dollars with interest thereon from the 13th of February 1827, which with costs is claimed in this suit.”</p> <p>July 31,1834.</p> <p>BOND. “Know all men by these presents, that I, Abraham Witmer, of Lancaster township, in the county of Lancaster and commonwealth of Pennsylvania, am held and firmly bound unto Roland Curtin, John Fleming and James Smith, in the sum of ten thousand dollars, lawful money of the United States to be paid to the said Roland. Curtin, John Fleming and James Smith, or either of them, their or either of their attorney, heirs, executors, administrators or assigns, to which payment well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents: sealed with my seal, dated the fifth day of November, in the year of our Lord one thousand eight hundred and five.</p> <p>* Whereas, Thomas M’Kean, Esq., Governor of Pennsylvania, by letters under the great seal of this commonwealth, dated at Lancaster, the sixth day of April, in the year of our Lord one thousand eight hundred and five — appointed Roland Curtin, John Fleming and James Smith, or a majority of them, commissioners'for the purpose of viewing and determining on the most eligible and proper situation for the seat of justice and public buildings in and for the county of Clearfield: And whereas, by an act of general assembly of this commonwealth, dated the fourth day of April in the year of our Lord one thousand eight hundred and five, it is made the duty of the commissioners so to be appointed “to take assurances by deed, bond or otherwise of any'lands, lots, moneys or other property, which hath been or may be offered for the use and benefit of the said county, either for the purpose of erecting public buildings, the support of an academy or other public use:” And whereas, the aforesaid commis* sioners, in pursuance of the power given them for that purpose have determined and fixed on, for the pulpóse aforesaid, a certain tractor parcel of land, the property of the said Abraham Witmer: And whereas, the said Abraham Witmer hath agreed to- sell and convey in such manner and to such person or persons as may be hereafter legally appointed for that purpose, one lot in said town, for the purpose of having a court house thereon erected,’one for jail, one for market house, three for an academy, and two pieces of ground for the public (as will appear marked on a general plan of said town.) And the said Abraham Witmer further agrees and engages to give his bond, or other security as may be required to such person as may be authorised to receive the same for the payment of three thousand dollars on the first day of May, which will be in the year of our Lord, one thousand eight hundred and twelve; one half thereof to be applied for the use of an academy or public school in said town, and one half for the purpose of erecting public buildings in said town.</p> <p>Now the condition of the foregoing obligation is such, that if the before bounden Abraham Witmer, his heirs, executors, administrators or assigns shall, from time to time, and at all times-, do keep and perform the aforesaid undertakings and agreements on his part, then and in such case, the above obligation to be void and of none effect, otherwise to be and remain in full force and virtue.</p> <p>Abraham Witmer, [l. s*]</p>

<p>ERROR to the common pleas of Columbia county. ■</p> <p>Magdalena Shirtz v. Jacob Shirtz. The plaintiff brought an action of dower against the defendant, in which.the jury found a verdict, “that Tobias Shirtz did not die seised; that the whole annual value of the premises at the time of the alienation was 33 dollars; one third of which they find to be of the annual value of 11 dollars.” Upon which the entry was made, “ judgment on verdict.”</p> <p>The plaintiff, upon-this judgment, sued out the following writ of scire facias:</p> <p>“ Columbia county, ss. The commonwealth of Pennsylvania to the sheriff of Columbia county, greeting : Whereas, Magdalena Shirtz, lately in our circuit court, for the county aforesaid, before the judges of the same court at Danville, to wit, on the 4th day of May, in the year of our Lord one thousand eight hundred and thirty-three, there, by the judgment of the same court, did recover against Jacob Shirtz one-third part of two messuages, eighty acres of arable land, twenty acres of meadow and fifty acres of wood land, situate in the township of Limestone, in the county of Columbia aforesaid, as the dower of her, the said Magdalena, of the endowment of To-bias Shirtz, deceased, her late husband, by one writ of dower, whereof she nothing hath. Yet the execution of the said judgment remaineth to be made, as on the information of the said Magdalena we have been given to understand. Wherefore, the said Magdalena besought us to provide for her a proper remedy in this behalf; and because we are willing that these things that in our same court are rightly acted should be brought to due execution. We command you that justly and without delay, by good and'lawful men of your bailiwick, you make known to the said Jacob Shirtz that he be and appear before our judges at Danville, at our court of common pleas, there to be held the third Monday of August next, to show cause, if any he have, why the said Magdalena her seisin of dower in the said premises should not forthwith have. And, further, to do and receive all and whatsoever our said court shall consider in that behalf. And have you then and there the names of those by whom you shall so make-known to the said Jacob Shirtz, and this writ. Witness the honourable Ellis Lewis, Esq., at Danville, twenty-third day of April, in the year of our Lord one thousand eight hundred and thirty-four.”</p> <p>“ The defendant pleads nul tiel record.</p> <p>“The defendant further pleads, that the verdict upon which said judgment was rendered, to wit, at said county, the 3d of May 1833, found that the said Tobias did not die seised of said premises; and that the annual value thereof at the time of the alienation of said premises by said Tobias to said defendant, was 33 dollars; and one third thereof, 11 dollars, for which said third the defendant has always been ready and willing to pay and satisfy said plaintiff, but the same has never been demanded; and this the said Jacob is ready to verify,’ and whereof he prays judgment, '</p> <p>“And the said defendant further pleads, that on the 1st of July 1834, at the county aforesaid, he tendered to the plaintiff 12 dollars 60 cents, the whole amount of said dower and costs then due and payable to the said plaintiff on the said judgment; and the same being then and there refused by the said plaintiff, the defendant paid the same to the prothonotary of this court, where the same yet remains ready for the said plaintiff; and this he is ready to verify, whereupon he prays judgment.”</p> <p>“ To the first plea above stated, the plaintiff replies there is such a record.</p> <p>“And the said Magdalena Shirtz, by her said attorney, E. Greenough, saith that the second and third pleas of the said Jacob Shirtz above stated, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude the said Magdalena from having her writ of seisin of dower against the said Jacob, in manner and form as she has set forth and prayed in her writ of scire facias ; and that she is not bound by the laws of the land to answer the same; and this she is ready to verify: wherefore, for want of a sufficient plea in this behalf, she, the said Magdalena Shirtz, prays judgment; and that she may have her writ of seisin of dower against him, the said Jacob Shirtz. And the said Magdalena, according to the form of the statute in such cases made and provided, states and shows to the court here the following causes of demurrer, to wit: for, that the said defendant hath not by his said plea confessed and avoided, or traversed and denied, the recovery and judgment in the said writ of scire facias recited. Nor hath he traversed or denied, or attempted to put in issue, any matter of fact in said writ recited; and that said plea is no answer to said writ, but is evasive, and in other respects uncertain, informal and insufficient.”</p> <p>Joinder in demurrer.</p> <p>The court below, (Lewis, President), upon argument, rendered a judgment for the plaintiff upon the demurrer.</p> <p>to show that when the husband does not die seised, the seisin of the plaintiff can only be according to the value at the time of alienation, cited Humphrey v. Phinney, 2 Johns. 484; Dorchester v. Corvantry, 11 Ibid. 510; Dolf v. Basset, 15 Ibid. 23; Shaw v. White, 13 Ibid. 179; Winder v. Little, 1 Yeates 154; 2 Saund. 45, note 4; 1 Chit. Pl. 480; 2 Stra. 1171.</p> <p>cited Barnet v. Barnet, 15 Serg. & Rawle 72; Lineweaver v. Stoever, 17 Ibid. 297; Benner v. Evans, 3 Penns. Rep. 456.</p>

<p>If after ejectment brought the parties compromise, and the defendant purchases the plaintiff’s title, and secures the purchase money by mortgage, upon which a judgment is afterwards obtained, and the property sold, and ejectment is brought to recover possession, the defendant upon the trial will not bo permitted to defend himself in his possession, by the same evidence which he might have given in the original suit. The compromise is conclusive upon him. But he may be permitted to prove that the land for which the ejectment is brought is not the same which was the subjeet of the compromise.</p>

B. T. Case, plaintiff in error and plaintiff below against David Green and John Varrow. The plaintiff, to maintain the issue on his part gave in evidence this agreement. “ Bridgewater, August 13, 1830. The undersigned do jointly and severally promise to pay to B. T. Case, Esq. the full amount due to said B. T. Case, on and by virtue of an execution now in the hands of Francis Perkins, against David Green and Obadiah Green, be the same more or less.

<p>A iest’afor' devised a farm, and bequeathed the stock thereon to his widow for life',for the use of herself and other members of his family, with remainder to others named in his will; after liis death his widow took possession of the farm and stock, and used the same as directed by the will until her death: Held, that the stock and grain-which remained at her' death, although not the same which she received, went in re-mainder to the legatees named in the will, and not to the personal representative of the widow.</p>

<p>A purchaser of an equity of redemption, at a sheriff’s sale, upon a judgment and execution against the mortgagor, is not entitled to recover the possession of the land by ejectment, if before the trial of the cause the equity of redemption be divested by a sale upon the mortgage. In such case the.plaintiff is entitled to recover costs.</p>

This action, by James Donley for the use of M’Clurg & Trevor against William Willard, was founded upon a note of the defendant to the plaintiff for 1527 dollars 46 cents, endorsed to M’Clurg & Trevor. The defendant offered in evidence the deposition of James Donley taken on notice. - The plaintiff objected to it, on the ground, that a demand was made of notice of the special matter upon which the defendant relied, and it was not given.

<p>ERROR to the common pleas of- Union county.</p> <p>This was an. action of covenant by George Weiser, administrator of Peter Weiser, against David Weiser and John Bossier, administrators de bonis non of Conrad Weiser, deceased.</p> <p>In the year 1760, Conrad Weiser devised his land to his children Philip, Frederick, Peter, Samuel, Benjamin, Mariah and Margaret, as tenants in common. In 1773, the devisees all executed a deed of partition of the lands among themselves, which contained a clause of special warrantee. One of the parties or he who claimed under him, was evicted and turned out of the possession of the land allotted to him by the deed of partition, by a title paramount; and this action of covenant was brought against the representative of another party to the deed, upon the ground, that a deed of partition necessarily contained an implied warrantee of title. The plaintiff in his declaration set out a general warrantee of title; and offered in evidence the deed, which was objected to on the ground that it did not contain the covenant set out. Whereupon the. question arose. The court (Lewis, President) being of opinion, that the law did not raise any implied covenant of title between the parties, rejected the evidence.</p> <p>cited 7 Bac. Ab. tit. Warranty, letter E. 231; Ship. Touch. 165; Platt on Cov. 45.</p> <p>contended that no implied warrantee arose out of the general terms of a deed of partition; but if it did, that the special warrantee in the deed between these parties excluded the idea of a more extensive liability; and, cited Miller v. Heller, 7 Serg. & Rawle 32; Christine v. Whitehill, 16 Serg. Rawle 113; Whitehill v. Christine, 3 Penns. Rep. 313; 2 Johns. Cases 203; Kent v. Welch, 7 Johns. 258; Whallon v. Kauffman, 19 Johns. 97; 7 Bac. Ab. Letter C. 228; Platt on Cov. 358-381.</p>

<p>An account, against the plaintiff by a third person, merely proved by a deposition, “ to have been faithfully made out from the original entries in the books of the deponent," is not competent evidence for the plaintiff. Nor would the books themselves be admissible with no better proof of authentication.</p>

, made defence as terretenant, and gave notice that he claimed title under a sale of the land as unseated for taxes. After the plaintiff had given the mortgage in evidence, the defendant offered in evidence the tax books from the commissioners’ office to show that a tax had been assessed, remained unpaid, and for which the land was sold; and also the receipt of the treasurer for the surplus bond required by the act of assembly.

Alva C. Bush plaintiff below against Isaac Adams. The writ of error in this case was sued out to reverse a judgment entered by warrant of attorney upon the following bond: “ Know all men by these presents, that I, Isaac Adams, of the township of Tioga, county of Tioga, and state of Pennsylvania, am held and firmly bound unto Alva C. Bush, of the township, county, and state, aforesaid, in fhe sum of eighteen hundred dollars, to the which payment well and truly to be made, 1…

Sharp, the defendant in error, obtained a judgment in the common pleas against Smith; upon which Smith took a writ of error and reversed the judgment, and no venire de novo was awarded ; whereupon he returned the record and issued a fieri facias against the plaintiff to recover his costs; which the court below set aside. cited 1 Penns. Prac. 229; Russell v. Gray, 6 Serg. & Rawle 208. cited 1 Chit.

<p>ERROR to the common pleas of Bradford county.</p> <p>Dalanson Saltmarsh against Elias Minier and George Minier. On the 9th of April 1818, E. Overton obtained judgment against Daniel Minier. In 1827, a scire facias was issued against the administrators of D. Minier to revive the same, which was served upon the defendants, and upon Elias Minier and George Minier, terre-tenants, upr on which judgment was rendered. In 1832, another scire facias was issued against the defendants and terre-tenants, to which the terre-tenants appeared and pleaded payment with leave. The cause was tried and verdict for the plaintiff, upon which execution issued; and the land was sold to Dalanson Saltmarsh the plaintiff, who instituted a proceeding before two justices ol the peace to obtain possession. Elias Minier appeared before the justices and made the necessary affidavit required by the act of assembly to entitle him to a trial in the common pleas, and the proceedings were accordingly transmitted. When the cause came on for trial the defendant ob- , jected to proceed, on the ground that the. cause was not at issue; but the court (Herrick, President) was of opinion that the cause required no other or more formal issue than the proceedings before, the justices. This was the subject of the first error assigned.</p> <p>Upon the trial of the cause, the defendant offered in evidence a deed from Daniel Minier to him, dated the l7th of March 1S17, (prior to the judgment on which the land was sold to the plaintiff,) accompanied by parol evidence that he went into possession of the land at that time, and has been in possession ever since. This evidence was objected to, on the ground that the appearance of Elias Minier to the scire facias, and the judgment against him, was conclusive. The court was of this opinion, and rejected the evidence, which was the subject of the second bill of exceptions.</p> <p>cited Hines v. Jacobs, 1 Penns. Rep. 158; Coyle v. Reynolds, 7 Serg. & Rawle 328; Chahoon v. Hollenbach, 16 Serg. & Rawle 432.</p> <p>cited Heller v. Jones, 4 Binn. 61; Kichner v. Dengler, 1 Watts 424; Kneas v. Hollenbach, 1 Serg. & Rawle 548.</p>

This was an action in the name of the commonwealth for the use of William M’Coy, against Isaiah Reed, sheriff, upon his official bond.

This was an action of ejectment for two lots in the town of Sun-bury, by Gideon Leisenring against Jane Black. In this case Jane Black, the defendant, and her brother William C. Black, had an unsatisfied judgment, of upwards of two thousand dollars, against their father James Black. Samuel J. Packer, Esq., was their attorney, employed to obtain execution of the judgment, and to collect the amount due thereon, so far as practicable.

This was an action of ejectment by Valentine Beidelman against John Foulk for ten acres of land, partly covered with water, and including a water-right. The facts of the case, and the errors assigned, are sufficiently stated in the opinion of the court; which was delivered by

Scire facias post annum et diem at the suit of Lewis Maus for use, &c. against William Montgomery, administrator of Philip Maus, with notice to Joseph Maus, Lewis Maus, Elizabeth Maus and Philip Stráwbridge.

This was an action of debt by Cornelius Ives, for the use of William Willard, against Aaron Niles, upon a note which had been given in consideration of the conveyance of a tract of land. All the facts of the case, which are material to the points raised and decided, are fully stated in the opinion of the court; which was delivered by

This was an action on the case for slander by James D. Foresman against John Call in which a verdict and. judgment were rendered for the plaintiff for 75 dollars.

The United States against Christian Shively who survived Jacob Stees. The plaintiff brought an action of debt against Shively and Stees, upon both of whom the writ was served. On the 30th of October 1818, Stees confessed judgment. On the 19th of February 1822, the court, on motion, rendered judgment against Shively, amount ascertained by direction of the court, 263 dollars 86 cents.

<p>ERROR to the commom pleas of Bradford county.</p> <p>Joseph Ingham and David Ingham against George Tracy; scire facias sur recognizance, in which the following case was stated for the opinion of the court.</p> <p>On the 28th of June 1834, the present plaintiffs commenced a suit before E. Mason, Esq., against Jacob Wilden and Lewis C. Leishey, and on the 4th July following obtained a judgment against them for 77 dollars and 35 cents. On the 25th of July 1834, the defendants appealed, and the magistrate made the following entry on his docket: “Defendant appeals. July 25th, 1834, George Tracy, bound in the sum of one hundred and fifty-five dollars and ninety cents that defendants do prosecute their appeal in the above suit to effect. Acknowledged before me, the day and year above,</p> <p>“Eupt. Mason, J. P.”</p> <p>On a trial of this suit at September term, a judgment was obtained against the defendants for the sum of 83 dollars and 58 cents, debt, and 45 dollars and two cents, costs. On the Sth of January 1836, the present suit was commenced by scire facias setting out a good recognizance in the words of the act of assembly, to which the defendants pleaded “ mil tiel record.”</p> <p>The question for the opinion of the court is, whether the entry so made by the magistrate is a sufficient record of a good recognizance so as to warrant the issuing of the scire facias in the present suit ?</p> <p>If the court are of the opinion that it is, then judgment is to be entered for the plaintiff for the above sum of 83 dollars and 58 cents, with interest and the said costs; if not, then a judgment to be entered for the said defendant, subject in either case to a writ of error.</p> <p>The court below rendered a judgment.for the defendant.</p> <p>cited Moore v. M’Bride, 1 Penns. Rep. 149; Burgess v. Jackson, 2 Penns. Rep. 433; Pier v. M’Kenney, 2 Watts 104.</p> <p>cited King v. Culbertson, 10 Serg. & Rawle 335; Bolton v. Robinson, 13 Serg. & Rawle 193; Donaldson v. Cunningham, 13 Serg. & Rawle 343.</p>

The plaintiff had obtained a judgment against Richard Elston, upon the docket of Justice Comstock, and Erastus Nolcott entered into a recognizance before the said justice, to entitle the defendant to a stay of execution for six months. At the expiration of this period an execution was issued and returned, “ no property,” upon which a scire facias issued: and the question was whether the plaintiff upon these facts was entitled to recover.

John Marcy claiming to be an owner of a tract of land, upoii which Andrew Gardinier and others had cut a large quantity of timber, brought an action of replevin against them for the timber,- and an action of trespass for cutting it; and, the material question-which arose between the parties, on the trial of these causes by the' same jury, Was to whom the title of the land belonged.

This was an action of replevin by Isaac M’Kinney & Sons against Joseph Rhoads, for fifty tons of iron.

WRITS of error to Luzerne and Bradford counties. James Hutton’s executor against Oliver Helme, and George Tracy against William Kelly.

This was an action of ejectment by Sarah L. Keene against Wright Lownsbury, Amos Spencer, Leander K. Spencer, Mehitable Miller, Orin Noble, Aaron Gilbert and Christopher Huntingdon for five hundred acres of Land, in which the jury found a verdict “for the plaintiff for the land described in the writ and value the improvements to Orin Noble, 355 dollars; to Wright Lownsbury, 124 dollars; to Aaron Gilbert, 24 dollars; and to Amos Spencer, 56 dollars,” upon which judgment was…

<p>An association by which each surrendered his property into one common stock for the mutual benefit of all, during their joint lives, with the right of survivorship, reserving to each the privilege to secede at any time during his. life, is not prohibited by law. And that right of secession is not transmissible to the personal representative of a party to such agreement, so as to enable him to recover the property of his intestate, so put into the common stock.</p> <p>A member of a religious society cannot avoid a contract with it on the basis of its peculiar faith, by setting up the supposed extravagance of its doctrines as proof that he was entrapped. ,</p>

<p>ERROR to the common pleas of Fayette county.</p> <p>Jonathan Rowland, executor of Jacob Harbaugh, settled his administration account of the estate of his testator in 1820, by which it appeared there was a balance in the hands of the accountant. Jonathan Rowland died in 1S31; and atranscriptof the said balance was filed, in pursuance of the act of the 1st of April 1823, in the prothonotary’s office in 1833 ; upon which the writ of scire facias in this case issued, at the suit of William Harbaugh, one of the children and heirs at law of Jacob Harbaugh, deceased, against Thomas Rowland, Charles Griffith and wife, children and heirs at law of Jonathan Rowland, and the terre-tenants of the land of which their father died seised.</p> <p>The only question in th'e cause was whether this writ of scire facias against heirs, upon a transcript entered after the death of the accountant, could be maintained.</p> <p>The court below sustained the proceedings, which was the error assigned.</p>

<p>ERROR to the district court of Mleghany county.</p> <p>This action was brought by William Whitehead and Christian Johnson against Samuel W. Carr, and the cause of- action was assumpsit, upon a parol contract for the sale and purchase of a lot of ground.</p> <p>The proof was that Johnson called upon Carr to purchase a lot of ground from him and they agreed positively for the price of 1300 dollars, and the taxes of that year to be paid by Johnson as soon as the deed was made. Carr said he could give a good title. Johnson said that he was going down the river the next day and he would get Whitehead to attend to it. When Johnson returned home, he called upon Carr to execute the contract, and he refused; Johnson' then procured a deed containing a clause of general warranty from Carr to himself and Whitehead to be written, and took it to Carr and tendered him the purchase-money, and demanded the execution of the contract, which was refused.</p> <p>Upon the trial, the plaintiffs offered several matters of evidence, tending to show, that they were damnified, by the refusal of Carr to perform his contract; for instance, that the lot had risen in price: that they had been obliged to purchase another lot, under disadvantageous circumstances; that they had been delayed in the prosecution of their business; and that they had been subjected to expense in the examination of the title.</p> <p>The court overruled all the evidence thus offered, and (Grier, President) instructed the jury, that the action had not been rightly brought in the name of the two plaintiffs, and that it could not have been maintained if it had, without proof of a part execution of the contract.</p> <p>cited Bell v. Andrews, 4 Dall. 152; Ewing v. Tees, 1 Binn. 450; Marshall v. Campbell, 1 Yeates 36.</p> <p>contended that the contract could not be considered valid for any purpose, because it was void in consequence of the statutes of frauds and perjuries.</p>

Henry Vankirk against Jacob Byerly, Esquire. Debt for the penalty of 50 pounds, for marrying the plaintiff's minor son. The preparatory notice, required by the act of assembly, was endorsed, “ M’Kennan and Watson, whose office is on Maiden street in the borough of Washington, Washington county, Pennsylvania, are my attorneys.” The notice was served by the plaintiff himself, who handed a copy of it to the defendant.

<p>The uncertainty of a verdict may be a good ground for setting it aside and granting a new trial, but it is no reason for arresting the judgment.</p> <p>In an action of ejectment for fifty acres of land, upon the general issue, the jury found “ for the defendant ten acres, forty-eight perches, the meadow on the west side of the creek, and find for the plaintiff the balanceHeld, that the verdict was sufficiently certain.</p> <p>The plaintiff in ejectment, in his statement, described his claim as “ fifty acres of land in Athens township, Crawford county, bounded north, west and south by land of the plaintiff, and part of the same tract No. 157, and east by land of the heirs of Daniel Carlin Held, to be a sufficient description.</p> <p>Upon the trial of an action of ejectment, exceptions to the opinion of the court were taken by both the plaintiff and defendant; the jury found a verdict, which the court below deemed uncertain, and therefore arrested the judgment. Upon a writ of error by the plaintiff, the judgment of the court beiow was reversed, and the record remitted, with directions to enter judgment upon the verdict, that the defendant might have the benefit of his exceptions upon a writ of error.</p>

ERROR' to the district court of Alleghany county. This was an action of debt on a promissory note by Ormsby Hite & Co. against Jason Chamberlin. The declaration was in assumpsit in common form. The defendant pleaded nil debe/, non est factum, payment, &c.; afterwards, he pleaded in abatement, that Thomas Hite was a partner of Ormsby Hite, and. should have been joined in the action.

<p>Iii an action of trespass for a wilful and malicious abuse of process and sale of the property of the plaintiff, he may recover vindicatory damages, although the meditated oppression was not intended for the plaintiff but for another.</p>

<p>ERROR to the common pleas of Westmoreland county.</p> <p>This was an action of ejectment by John Foster against Samuel Walton, in which both parties claimed under Robert Register ; the plaintiff, by a deed dated the 17th of February 1820, and the defendant by a deed dated the 20th of September 1820. It was proved, that Walton was aware of the conveyance to Foster, when he took his deed. The defendant offered to prove that at the time Register conveyed to Foster he was indebted, and that the conveyance was to defraud his creditors. This evidence was objected to by the plaintiff; but the court overruled the objection and sealed a bill of exceptions; and in their opinion to the jury, submitted the fact to them, with instruction, that if the deed was for the purpose of defrauding creditors it was void, and the plaintiff could not recover.</p> <p>The reception of the evidence, and this instruction were assigned for error, and argued by</p>

<p>It is not material when the appointment of a trustee of an insolvent debtor be made; the estate of the insolvent vests in the trustee upon his being duly qualified whether the appointment be made at the date of the discharge or years afterwards.</p> <p>A lot of ground enclosed with a fence, and a dwelling house upon it, unoccupied for part of a year, the owner living near to it, is not a subject of sale, as unseated land, for taxes.</p> <p>One in possession of ground, against whom an ejectment is brought, set up upon the trial a title in himself under a deed from the treasurer upon a sale of the lot as unseated for taxes; he will not be permitted, upon discovering that the law will not sustain this title, to found his defence upon an entry for the non-payment of a ground rent, and ask the jury to presume that his entry was rightful. And in such case he will not be permitted to send out with the jury an account of the amount of ground rent due.</p>

<p>In an action of ejectment by the heirs at law of a landlord against a tenant, it is competent ibr the defendant to give evidence, that the landlord was only seised of a life estate, which terminated by his death before action brought.</p>

<p>A tenant cannot destroy his landlord’s possession by a secret agreement to attorn to another. A tenant cannot, therefore, by any agreement or acknowledgment of the title of a third person, so affect his landlord as to destroy the right which he would otherwise have by reason of an adverse possession for twenty-one years.</p>

<p>In an action of ejectment, evidence offered by the defendant as rebutting, should not be rejected on the ground that it introduced a new subject-matter of defence, if the introduction of such evidence was rendered necessary by the course which the plaintiff had previously taken.</p> <p>Unseated land, the property of minors, sold for taxes, is subject to be redeemed at any time within two years after they respectively come of age.</p> <p>Semble, If one merely declares publicly that he purchases land for another, without any previous agreement, or without any advance of money for the purpose, it is not such a transaction as will raise a trust which can be enforced in equity.</p>

This was an action of ejectment by William Barker against Samuel Ross and others. The plaintiff gave in evidence a warrant dated the 3d of April 1792, in the name of William Barker, and another of the same date in the name of Joseph Williams adjoining, which were executed and surveys made in 1794.

<p>The legality of the execution of a will must be judged of by the law as it was when it was executed, and not as it was at the death of the testator.</p> <p>Each of two witnesses to a will, in order to establish its execution, must testify to all that the law requires, in order to justify the court in permitting it to go to the jury.</p> <p>When one subscribing witness testifies positively to the execution of a will, and the other, that he remembers having subscribed a will as a witness, at the request of the testator, and will not say positively whether his name as a witness to the will, is his signature or not, the court rightly permitted the will to be read to the jury.</p>

WRIT of error to the common pleas of Butler county. This was an action of ejectment by James Spencer against Lewis Chambers in which both parties claimed title under Guy Hilliard. All the facts of the case are fully stated in the opinion of the court. cited White v. Shriver, 2 Watts 471; Thompson v. Dougherty, 12 Serg. & Rawle 456; 6 Peters Cond. Rep. 277; 11 Wheat. 199; 5 Peters’ Cond. Rep. 428. cited 12 Serg. & Rawle 456; 8 Wheat. 229; 1 Rawle 131.

<p>ERROR to the common pleas of Fayette county.</p> <p>C. Atkinson against J. Graham. Debt on a sealed note, dated the 27th of March 1832.</p> <p>On the trial of the cause the defendant proposed to give evidence of the character of the plaintiff as to honesty. The plaintiff objected, but the court overruled the objection and sealed a bill of exception.</p> <p>The defendant also offered to prove, “ that in 1831 Atkinson admitted that Graham owed him but about 30 dollars; and that since that time he has received of Graham money more than the balance he claims before and since this judgment.” This was objected to by the plaintiff, but the evidence was received, and the plaintiff excepted.</p>

N. A. Lowrie against John Day and William Meredith. The following facts stated were considered in the nature of a special verdict, with leave to either party to sue out a writ error.

This was an action of debt on a bail-bond taken by the sheriff for the appearance of Neal M’llwayne to'answer William Graham, Jun. The action was by William Graham, Jun., assignee of William Leckey, sheriff, against Neal M’llwayne and Henry Baxter. The defendant pleaded non est factum, payment, comperuit ad diem, and three other special pleas in bar; to none of which was there a replication; and the parties went to trial.

This was an ,action of covenant by the administrators of George Kleppinger, deceased, against John Stevenson, for not conveying the land mentioned in the following agreement: “Articles of agreement made and agreed by and between John Stevenson, of Hempfield township, Westmoreland county, of the one part, and George Kleppinger of Mount-Pleasant township, and county aforesaid, of the other part, witnesseth, that the said Stevenson hath bargained and sold unto the said…

Special court, held by Shippen, President. Josiah Galbreath against Thomas Campbell. Ejectment for a tract of land. All the points made in the court below and in this court, and the grounds upon which they were supported, are so distinctly and fully stated in the opinion of the court, that it is not necessary to insert them here.

Norcross v. Forsythe, assumpsit, in book account, for blacksmith work done by the plaintiff for the defendant. The plaintiff being sworn, said, that the books exhibited were his books of original entry: that-he made the entries on a slate until it was full, and then after four, five, or six days, transcribed them into his book; and he and three other witnesses, blacksmiths> swore that this was a general custom, as far as they knew.

This was an action of, ejectment by Adam Stewart against Mar-* garet Frame and others, in which the parties agreed to the following special verdict. “ Thomas Frame, the elder, being seized of a tract of land, of which the premises for which this ejectment is brought is part, by his last will and testament, dated the 7th of May 1813, devised as follows; (pro ut the will.) He died soon after having children, viz,, Edward, James, Thomas, (dead and unmarried) Abner, John,…

Peter Brougher against Nathan Long. This was an action of slander in which the declaration laid the charge by the defendant to have been that the plaintiff had committed a crime against nature; Plea, Not guilty.

This was an action of ejectment for a tract of land, by Joseph Brown against James Fish, the facts of which are sufficiently stated in the opinion of the court.

Assumpsit by Hugh Robertson against William Steward. The plaintiff filed the following statement of his cause of action: “ One James Shaw was indebted to a certain Aaron Hart in the sum of 988 dollars, for which- debt the said James gave his promissory note, which was discounted at the office of discount and deposit of the bank of the United States in Pittsburgh. The said Hart, after two or more renewals, declined renewing the said note again, and said it must be paid.

Robert Baldwin and others, owners of the steamboat “Abeona” against Malcom Leech. The plaintiff gave in evidence a bill of lading, dated at New Orleans the 20th day of March 1833, signed by the master of the steamboat “Farmer,” acknowledging the receipt of 90 barrels of molasses in good order, weighing 26,660 lbs., to be transported to Pittsburgh, and delivered to M. Leech, the defendant, freight to be paid by him at the rate of 60 cents per hundred pounds.

In a suit pending between Patrick Cassilly and William Richardson, the parties, by parol, agreed to refer it; the referees made a report for the plaintiff for 25 dollars and costs of the suit. This award the plaintiff entered and issued an execution upon it. Upon a writ of error by the defendant,* the judgment was reversed.

Ejectment by Thomas Graham against Andrew Donaldson, for four hundred and thirty-nine acres of land. The legal title to the land had been in the plaintiff, against whom the defendant’s father had obtained a judgment for 700 dollars, and had levied an execution on the land in dispute, which was subsequently sold by the sheriff, to the defendant, Andrew Donaldson, on the 4th of January 1835, for three hundred and fifty dollars.

This was an action of assumpsit by Robert Hitchman against John Graeff, John Atchison and James Atchison.

<p>ERROR to the common pleas of Alleghany county.</p> <p>The facts of this case and the questions of law determined, are very clearly stated in the opinion of the court.</p>

<p>A deed of conveyance which describes a line as'running “ to a stump near the creek, and thence up the creek, north fourteen and a half perches, to a stone, &c.” is to be construed as including all the land to low-water mark of the creek.</p>

This action is brought upon a contract for building a canal boat, by Thomas Young against James P. White. The article of agreement being duly proved was given in evidence, as follows: “Memorandum of an agreement entered into, on the 8th of September A. D. 1834, by and between Thomas Young, of the one part, and James P. White, of the other, both of,the county of Cambria, and state of Pennsylvania.

The question reserved in this case at the preceding term, whether interest may be calculated anew on a judgment of revival, under the act of 1798, (see the report 4 Watts 347,) having come on for argument, was now spoken to by Jlustin and Ewing in the affirmative, who relied on Fries v. Watson, 5 Serg. ¿y Rawle 220, and Berryhill v. Wells, 5 Finn. 60; and by Dawson in the negative.

Ejectment by James Pauli, Jun., against Thomas Layton. His Honour, who delivered the opinion of the court in this case, prefaces it with all the material facts.

<p>ERROR to Westmoreland county.</p> <p>Samuel Shaw for the use of Charles Winel against Peter Claasen.</p> <p>“Peter Claasen, late of said county, yeoman, was summoned to answer Samuel Shaw, who sued for the use of Charles Winel and Sarah, his wife, late Sarah Earner, of a plea that he render unto the said plaintiffs the sum of 41 dollars and 74 cents, lawful money, which, to him he owed and unjustly detains; and hereupon the said plaintiffs complain, for that whereas, one. James Claasen and one Thomas Johnston, before and at the time of the making of the writing obligatory o.f the said Peter, herein after mentioned, was indebted to the said Sarah, since intermarried with the said Charles Winel, in a certain sum. of money, to wit, the sum of 35 dollars and 87 cents, lawful money, for which said sum of money a.certain action had been commenced and prosecuted by and at the suit of the said Sarah against the said James Claasen and Thomas Johnston, before John Wells, Esquire, one of the Commonwealth’s justices of the peace, in and for said county,'in which said action judgment was rendered for the said Sarah, against the said James Claasen and Thomas Johnston, for the aforesaid sum of 35 dollars and 87 cents, debt, lawful money, together with the costs of said action, on which said judgment, the said Sarah afterwards, to wit, on the 30th day of January 1834, at said county, the said judgment remaining unsatisfied, sued out and prosecuted a certain writ of execution directed to the said Samuel Shaw, then being a constable in the said county aforesaid, by which said writ the said constable was commanded to levy distress on the goods and chattels of the said James Claasen and Thomas Johnston, and make sale thereof, according to law, to the amount of said debt, with the interest and costs thereon, indorsed on the. said writ of .execution, to wit, to the amount of 41 dollars and 74 cents, lawful money, and to make return thereof to the said justice, in twenty days from the date thereof; which said writ so endorsed, as aforesaid, was delivered to the said Samuel Shaw, who then and from thence and until and after the return thereof, was constable in due form of law, to be executed; and whereas, after-wards, to wit, on the 11th day of February in the year aforesaid, at the county aforesaid, in consideration of the premises, and that the sajd Samuel, at the special instance and request of the said Peter, would forbear and cease to execute the said writ, and would stay all further proceedings therein against the said James Claasen and Thomas Johnston, he the said Peter then and there by his certain writing obligatory, sealed with his seal, and to the court here shown whose date is the day and year last aforesaid, firmly bound himself unto the said Samuel Shaw, on the 26th day of February in the year last aforesaid, to pay the amount of the debt, interest, and costs endorsed on the said execution, or deliver property to satisfy the same, at the house of a certain Mrs Linsebigler, as by the said writing obligatory more fully appears. And the said Samuel, in fact, saith that the said Peter, did not pay the amount of the said debt, interest, and costs, on the said execution, on the said 26th day of February, then next after the date of the said writ, or deliver property to satisfy the same, at the house of the said Mrs Linsebigler, but therein wholly failed and made default, whereby the said writing obligatory became forfeited, by means whereof, action hath accrued to the said plaintiff’s to demand and have of and from the said defendant, the said sum of 41 dollars and 74 cents, lawful money. Yet the said Peter, although often requested, hath not as yet paid the debt, interest, and costs of the said execution amounting to the aforesaid sum of 41 dollars and 74 cents, lawful money, or any part thereof, to the said Samued, but hath hitherto wholly neglected and refused so to do, and still doth neglect and refuse to pay the same or any part thereof, to the said Samuel, to the damage, &c.”</p> <p>“And the said Peter comes and prays oyer of the writing obligatory aforesaid, and it is read to him in these words, to wit: ‘We promise to pay the amount of the within execution to Sami. Shaw, on Saierday the 26th of this inst. or deliver property, to satisfy the debt intmst cost at. the house Mrs Linsenbiglers without stay of execution as witnes my hand and seal.’</p> <p>“Execution dated the 30th day of January 1824, never returned.</p> <p>“ Which being read, the said Peter says, that he ought not to be charged, by virtue of the said writing, because he says, that although true it is, a certain judgment was obtained and execution issued thereon, as set forth in the plaintiff’s declaration in this cause against the said defendant filed ; yet by an act of the general assembly of the commonwealth of Pennsylvania, before'that time passed, that is to say, on the 20th day of March 1810, it' was provided, that the said constable should be and was bound to execute the said process and should not be discharged from liability thereon but by producing to the justice, on or before the return day of the execution the receipt of the plaintiff, or such other return as may be sufficient in law. And by the same act of assembly, it was also further provided, that, ‘ In all cases where a constable levies an execution issued from a justice of the peace, he shall endorse the goods or chattels so levied on the execution, or schedule thereto annexed, which levy shall be a lien on such chattels for twenty days after levying the same, and no longer; and the constable making such levy is hereby authorized and empowered to take a bail bond in the following or like words, viz: “ We, A. B. and C. D. or either of us are held and firmly bound unto E. F., constable, in the sum of-upon condition that the said A. B. shall deliver unto E. F. aforesaid, the following goods and chattels-■ on the-day of-at the house of-which is taken in execution at the suit of G. PI. against A. B., or pay the amount of the said execution, with costs. Witness our hands and seals this-day of-.” But if the said defendant shall not deliver the chattels so specified in such bond, or pay the amount of such execution, the constable may then proceed to the sale of such goods or chattels so levied, provided the lien created by such levy be not expired, &c.”</p> <p>“ Yet the said Peter saith, that after the making of the said act and at the time of making said writing as supposed in the plaintiff’s declaration, the said constable had not made any levy on any of the goods and chattels, nor taken into custody the bodies of the said James Claasen and Thomas Johnston, or either of them, but that the said supposed writing was taken for ease and favour, and against the provisions of the acts of assembly in such case made and provided, and by colour of the office of the said Samuel Shaw. And so the said Peter saith, that the said writing here produced in form aforesaid, and for the cause aforesaid, as before mentioned, is void in law, and this he is ready to verify, wherefore he prays judgment, if the said plaintiff ought to have his said action against him, &c.”</p> <p>“ And the said plaintiffs, as to the said plea of the said defendant, by him secondly above pleaded, saith the same, and the matters therein contained, in the manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude him, the said plaintiff, from having and maintaining his aforesaid action thereof, against 'him the said defendant, and that he, the said plaintiff, is not bound by the law of the land to answer the same, and this he, the said plaintiff is ready to verify; wherefore, for want of a sufficient plea in this behalf, he, the said plaintiff, prays judgment, and his debt aforesaid, together with his damages by him sustained, on occasion of the detention thereof, to be adjudged to him, &c.”</p> <p>“ And the said defendant saith that his plea, by him secondly above pleaded, and the matters therein contained, in the manner and form as the same are above pleaded and set forth, are sufficient in law, to bar and preclude the said plaint'ff from having and maintaining his aforesaid action thereof, against him the said Peter, and that he, the said Peter, is ready to verify and prove the same, as the said court shall direct and award; wherefore, inasmuch as the said plaintiff hath not answered the said plea, nor hitherto', in any manner, denied the same, the said Peter prays judgment, and that the said plaintiff may be barred from having, or maintaining his aforesaid action thereof, against him, the said defendant, &c.</p> <p>Assignment of errors.</p> <p>The court erred in entering judgment in favour of the defendant in .error, the law (from the above state of the pleadings) being with the plaintiff in error.</p> <p>The obligation is void, because it is substantially different from the bond prescribed by tbe act of assembly of the 20th March 1810, sect. 18th. „</p> <p>It is void as an obligation at common law, there being no consideration, either expressed or implied.'</p> <p>cited the act of 20th March 1810; Farmers’ Bank of Reading v. Boyer, 16 Serg. & Rawle 4; Dive v. Mannigham, 1 Plowd. 62 ; M’Kee v. Stannard, 14 Serg. & Rawle 382; 1 Saund. 168.</p> <p>cited 2 Chit. Pl. 477; Cro. Car. 309; 10 Coke 100 a; 1 Mod. 452 ; 4 Mod. 187.</p>

<p>ERROR to the district court of Mleghany county.</p> <p>This was an action of account-render by Ezekiel Harker against the executors of Aaron Whitaker, deceased.</p> <p>In 1821, William Bently was in possession of ten lots in Birmingham, on which were erected two brick houses, a frame one, and two frame stables. Being in insolvent circumstances, he conveyed them by two deeds, dated in January 1821, to defendant’s testator, for the nominal consideration of 2200 dollars; but by a defeasance, dated the same time as the deeds, it appears, the real consideration of the deeds was the sum of 16S dollars; and that Whitaker was to re-convey when that amount was paid. Whitaker put his deeds on record, but Bently kept his defeasance several years, and after his death Harker, the plaintiff, discovered the existence of this defeasance — took this property in execution, on a judgment he had obtained against Bently’s estate, and became the purchaser of it at sheriff’s sale, as Bently’s property, and received the deed for it on the 30th of November 1831. He then brought an ejectment against the persons in the actual possession of the property. Aaron Whitaker, although not made a party in the ejectment, came forward and employed counsel, and made defence, but before the trial of it, to wit, in March 1833, he died, having devised the property in question to his son Joseph. On the 30th of January, the ejectment was tried in this court and a verdict and judgment rendered for the plaintiff Harker, which was afterwards affirmed by the supreme court.</p> <p>The plaintiff’s recovery in the ejectment was mainly on the ground that the defendant’s title was fraudulent.</p> <p>This action was brought against the executors of Aaron Whitaker,' to recover the mesne profits of the land recovered in the ejectment; and the question was, could the action be maintained?</p> <p>The court below (Grier, President) instructed the jury to give a verdict for the defendants; being of opinion that the action would not lie, under the circumstances of this case.</p> <p>cited 2 Dall. 176; 1 Vern. 105; 1 Yeates 121; 2 Pr. Wms. 644; 1 Pr. Wms. 406; 2 Atk. 130; 2 Bro. Chan. 620; 6 Vez. 93; 6 Wend. 284; 3 Serg. & Rawle 579; 16 Serg. & Rawle 301; 3 Penns. Rep. 399; 4 Cow. 468; Adams on Eject. 331. 339; 1 Paige 508; Sug. Vend. 521; 1 Rawle 162; 13 Serg. & Rawle 225; 2 Story’s Eq. 441; 2 Williams on Ex’ors. 1061.</p> <p>cited 1 Com. Dig. 120, tit. Account, D; Co. Lit. 72, a; 1 Selw. 1; 11 Coke 88; 10 Serg. & Rawle 220.</p>

William Carrol against Robert Curry, a justice of the peace. Action for taking illegal fees. In a suit pending before the justice against William Carrol, a judgment was entered for the debt and costs, which the defendant paid. The items of costs received by the justice were set out upon his docket; and among them was a charge of 18 cents for swearing six witnesses.

<p>In filing a statement of a plaintiff’s cause of action, it is improper to add interest upon the several items of the demand and then claim interest upon the aggregate.</p> <p>A judgment upon an award, which exceeds the claim of the plaintiff as set out in his statement, is erroneous, and if the surplus be not released either in the court below or this court, the judgment will be reversed.</p> <p>In an action of assumpsit in which the plaintiff filed a statement of his claim, composed of different items, the cause was referred to arbitrators who awarded for the plaintiff 366 dollars and 81 cents, being the amount of 100 dollars entered on the article, and all other accounts of C. F. omitting the bill No. 1. The defendant to be released from the payment of the aforesaid sum, on his fulfilling the article of agreement between him and C. F. in one year from this date: Held, to be erroneous.</p>

This action was instituted by John Knapp, for the use of David N. Camp, against James and Samuel Walker, before a justice of the peace, and was founded upon a negotiable note in these words: “ For value received, we jointly, or severally, promise to pay John Knapp, or bearer, one hundred and fifty dollars by the first day of January next, interest to be computed annually, as witness our hands.” The defendant offered to prove Knapp’s declarations after he parted with it, that…

This was an action of trespass by Lucinda Mayer against Samuel L. Carpenter, Esq. for selling the plaintiff’s goods, upon an execution against Joseph Mayer.

Jacob Weigel against Catherine Weigel. Issue, devisavit vel non, to try the validity of a paper dated the 14th of May 1835, purporting to be the last will and testament of Daniel Weigel, deceased. The plaintiff, to maintain the issue on his part, offered to prove by two witnesses, that the name of “Daniel Weigel” affixed to the paper, purporting to be his will, was the proper handwriting of the said Daniel Weigel.

David M’Clelland against Robert M’Culloch and George Anshutz, Jun.; scire facias sur mechanics’ lien.

<p>ERROR to the common pleas of Alleghany county.</p> <p>John Martin,, the plaintiff below and plaintiff in error, brought this action of trespass quare clausum fregit against Archibald M’Gord and John Crawford, for breaking and entering a school house, to which the defendants pleaded not guilty and liberum tenementum, and the question is, as to the title. The locus in quo is a lot of about half an acre, with a schoolhouse thereon, which was formerly part of a larger tract belonging to Taverner Ross. In the beginning of the year 1830, Ross proposed to Crawford and another of his neighbours, to give this ground for a schoolhouse, if the neighbours would go on and build a decent house on it for the benefit of the neighbourhood and for the benefit of his grandson John, whom he wished to send to school. The neighbours to the number of eleven or more, agreed, and a subscription paper was drawn up, by which they bound themselves to build the house. Ross declined, giving any money for the purpose, but said he would give the ground for his share. A surveyor was procured, who ran off the half acre on the centre of the tract by the direction of Ross, who pointed out the ground, and ordered the survey, and said, there is the ground, go on and build your schoolhouse. He afterwards said he would make a deed. The schoolhouse was built and fitted up, and occupied as such; but Ross subsequently refused to make a deed, giving as a reason, that his eyes were opened, &c., as stated in the evidence of Jacob Ross. The subscribers elected some of their number trustees, and shortly prior to the alleged trespass, the defendants were chosen trustees. John Ross, Jun., was residuary devisee of the tract, under the will of T. Ross, subject to the widow’s life estate, and on the 10th November, 1835, the widow being dead, conveyed to the plaintiff the lot in controversy.</p> <p>Upon the trial of the cause, James Jack was offered as a witness, by the defendant. He had lived in the neighbourhood, but had removed from it. The plaintiff objected to the witness, on the ground of interest; but the court overruled the objection, and sealed a bill of exceptions. Several other neighbours, who had previously released their interests, were offered as witnesses; and objected to by the plaintiff, and the court overruled the objection.</p> <p>The plaintiff requested the court to charge the jury that the alleged trust was vague, uncertain, and therefore void, but the court, (Dallas, President,) was of a different opinion; and instructed the jury, that the plaintiff was not entitled to recover. The court was also of opinion that the case was not within the statute of frauds and perjuries.</p> <p>contended that the gift was void for want of certainty as to the cestui que trust, and cited 8 Johns. 385; 9 Johns. 73; 4 Con. Reps. 372; 1 Watts 218.</p> <p>cited the act about Religious Societies, and Witman v. Lex, 17 Serg. & Rawle 93.</p>

<p>One who is interested as a partner, though not named on the record, cannot be made a witness merely by a release of his interest in the subject matter of the action; being still liable for the costs.</p>

This was an action of ejectment by Callender Irvine against Sala S. Barnes, for a tract of land in Warren county. The plaintiff claimed under a warrant to William Irvine, dated the 25th of April 1792, for which the purchase money was then paid in part. Upon the death of the warrantee the land descended to his heirs, who, in 1824, conveyed to the plaintiff. A survey was made on the 14th of April 1830, which was returned and accepted on the 11th of October 1830.

Sarah Collins against Robert'Smith. This ejectment was instituted to recover the possession of three hundred and thirteen acres and one perch of land. The plaintiff gave in evidence, a patent granted by the Commonwealth to Stephen Lowrey, dated the 24th of June 1808, and it was admitted that Stephen Lowrey, by his last will and testament divided this tract of land, amongst others, to the plaintiff. . The land described in the patent is the same on which the defendant resides.

<p>ERROR to the district court of Alleghany county.</p> <p>This action was trover for the value of five promissory notes made in favour of the plaintiff’s testator, which the plaintiff alleged had been fraudulently obtained and converted to his own use by the defendant. The suit was brought on the 17th of April 1835, and the defendant pleaded not guilty, and also a special plea, that on the 16th of April 1835, the defendant as assignee of the plaintiff’s testator, sued the maker of the- note, (Fleming,) in the same court, at and on the 24th of August in the same year, recovered judgment by default, and the sum was afterwards liquidated at 711 dollars; that the plaintiff had notice of the pendency of said suit; that he and his counsel took part in the defence of the suit; and that the plaintiff had a full opportunity to assert his claim, and to show that the present defendant had nothing in said note; yet judgment was rendered in favour of defendant. To which the plaintiff replied, denying these facts, and averring the assignment to have been obtained by fraud and imposition.</p> <p>By the record of the suit, referred to in the plea, it appeared, it was brought on the 16th of April 1835, and on the 17th of April, a statement was filed by the plaintiff, and the name of Stewart marked as appearing for the defendant, and on the 18th of April, M’Candless also appeared for defendant. Then there are these entries: 17th of April 1835, defendant appears, and craves oyer of the note and assignment. June 8th, 1835, defendant pleads nil debet, payment with leave, &c. August 24th, on motion of Mr. Hamilton, judgment under the act of assembly, and for want of an affidavit of defence, sums due to be liquidated by the prothonotary. September 21st, 1835, sums due liquidated at 711 dollars. October 13th, 1835, affidavit filed. April 25th, 1836, rule to show cause why fieri fiadas should not be,stayed until No. 82 of this term be finally decided; and in the mean time, proceedings stayed. June 11th, 1836, rule discharged. Fieri facias of April 1836.</p> <p>It further appeared by the parol evidence of Fleming, that the plaintiff gave him notice not to pay the note to Burnside, and said he would be at no costs, but did not say he (plaintiff) would .pay them. Witness made no defence to the suit. James H. Stewart, (who brought this suit and appeared in the other,) testified that the plaintiff called on him and made a statement about Burnside, when he brought this suit. He told him about the suit against Fleming, and witness said it was necessary to attend to it. He had not been employed by any one else to attend to Fleming’s suit. It was in consequence of this conversation, that he entered his appearance in that suit. When he said it was necessary to attend to it, the plaintiff said, very well, do what you think is necessary.</p> <p>The court below, (Grier, President,) instructed the jury that the appearance and conduct of the plaintiff, in the suit on the note, was not a bar to the plaintiff’s recovery; and referred the matters of fact to them, with a strong expression of the court’s opinion that the plaintiff ought to recover.</p>

Mary Newhouse against David Kelly. Appeal from the judgment of a justice of the peace. The plaintiff obtained the justice’s judgment for 61 dollars; an award of arbitrators for 94 dollars, and the verdict of the jury and judgment for 80 dollars; for which he issued an execution and for all. costs. The court below, on motion, set aside the execution as to the costs which accrued since the award of arbitrators. This was assigned for error. cited 1 Watts 43. cited 2 Penns.

<p>In an action of ejectment by a vendor against a vendee who has not paid his purchase money, the plaintiff is only entitled to have a conditional verdict and judgment, to be released upon the payment of the balance of the purchase money, at such time as the jury may prescribe. And this rule is not altered by the facts, that much time has elapsed since the execution of the agreement, and that the defendant had intimated his inability to pay.</p> <p>In an action of ejectment by a vendor, against a vendee, it is not always necessary that the plaintiff should be able to prove the tender of a deed before suit brought; the necessity for it often depends upon the contract. It is not necessary in a case where the vendee has previously declared his inability to perform his contract.</p>

This was an action by John M. Davis, marshal of the United States, against Henry Baxter, to recover the purchase money of land, which he had sold by virtue of a writ of venditioni exponas. On the trial, the plaintiff having proved the sale, offered in evidence a certified copy of the record of the judgment upon which the writ issued. The defendant objected to the evidence, on the ground that it did not purport to be an entire copy of the record.

John Fluck against Thomas Fairman, replevin for goods taken as a distress for rent. Issue, rent or no rent in arrear.

<p>ERROR to the District Court of Jllleghany county.</p> <p>The above was an action of ejectment, brought by the defendant in error, who was the plaintiff below, for the recovery of fifty acres, more or less, adjoining lands of said plaintiff below, Jeremiah Murray, Jacob .Steinmetz, and others. The land is situated in Plum township, Alleghany county. — The defendant pleaded not guilty— tried by jury, and verdict for the plaintiff, and judgment on the verdict.</p> <p>The real quantity of land in controversy amounted to thirty-nine acres and twelve perches.</p> <p>In the month of March, 1808, John Shuke commencod an improvement, as tenant, under the heirs of Nicholas Bausman, who claimed, under a sheriff’s deed, the right of John M’Kee; and in the month of May, of the same year, settled on the land, by virtue of which the land in dispute is claimed by the plaintiff in this ejectment. Said John Shuke made sundry improvements on said land, and continued to reside thereon for about ,twelve years, at which time he delivered up the possession to Joseph Logan, who purchased from the heirs of said Nicholas Bausman, and who continued to reside thereon ever since.</p> <p>Jacob Steinmetz, under whom the other defendants in the ejectment claimed, settled on a tract of land, adjoining the tract of land on which John Shuke settled, in the month of March, 1807; and he and the other defendants have continued their settlements thereon ever since.</p> <p>The whole of ¡the vacant and unsettled land, at the time of the settlement of Jacob Steinmetz, adjoining his settlement, including all the land claimed by the heirs of Nicholas Bausman, and now claimed by Joseph Logan, amounted to about two hundred and fifty acres. That now claimed by the said Joseph Logan, under his said purchase, including the land in controversy, amounts to one hundred and forty-two acres and one hundred and thirty-eight perches. The land now in dispute is principally cleared by the defendants below, and occupied by them for several years; and testimony was given, by the plaintiff below, of John Shuke having claimed to the line to which the plaintiff below now claims as his boundary, as early as 1809, and then having occupied the same as a sugar camp; and, also, that said Jacob Steinmetz then showed a line which he said was the boundary between him and Shuke, and which wmuld exclude from his claim the land now in controversy. There was also testimony of such a line on the ground, and of a line which would include in Steinmetz’s claim the land in controversy, and different and contradictory testimony of their respective claims at different times.</p> <p>The defendants below gave in evidence a warrant, in the name of Ephraim Steele, dated the twentieth of September 1773, for one hundred and fifty acres of land, lying on both sides of Turtle creek, above and adjoining land surveyed for Mr.. Butler, on said branch of Turtle Creek in the county of Westmoreland; and it was also testified, that the same specially described the land on which Jacob Steinmetz resided, including the land now in controversy; it was also testified, that old lines were found on the ground corresponding nearly with the date of the said warrant, including the land which said Jacob Steinmetz resided on, also embracing the land now in dispute.</p> <p>The^ defendants below also gave in evidence a warrant, in the name of John M’Kee, dated the first of February, 1793, for one hundred and twenty acres of land, adjoining the land of Christopher Wonder, William Edwards, and others, which it was testified applied to the land on which the plaintiff below resided, including also, with reasonable certainty, the land in dispute.</p> <p>The plaintiff also produced in evidence, a plot, or draft of a survey, on said warrant, in the name of John M’Kee, together with the deposition of John Parker, testifying that he was assistant deputy surveyor to John Moore, Esq., during the year 1793; that said draft was made by him as such, and filed as a rough draft in said John Moore’s office, as an office paper, which lands lay in the district of John Moore at that time; and that he made the survey, marked on the rough draft John M’Kee, for John M’Kee; and, in making said survey, ran into Ephraim Steele’s survey, through mistake, and did not intend it to be so; and said survey was made at the request of John M’Kee, but whether returned to the land office, he does not know.</p> <p>In said rough draft, the part run into Ephraim Steele is noted, and struck off, and separated by a black line, and said part includes the land now in dispute; and on the part of the draft not interfering with Ephraim Steele’s survey is noted the words “John M’Kee, 70 acres, 120 perches,” by said John Parker.</p> <p>It was testified that both Steinmetz and Nicholas JBausman declared that they claimed by M’Kee’s survey.</p> <p>The counsel for the defendants submitted the following points to the court, to which the following answers were given by Grier, President.</p> <p>1. —'“If the warrant of Ephraim Steele be special for the land in^dispute, and duly surveyed, and the land in dispute be within that survey, the plaintiff cannot recover from any title shown, or set up in this case.”</p> <p>Answer. — As the court have already informed yóu, this is not the law. It matters not whether Steele’s warrant was descriptive or not — it might justly be abandoned in 1793, when M’Kee’s warrant -was surveyed; and if plaintiff’s claim, when he took possession in 1808, was merely as an improver, and adverse to M’Kee’s warrant, he had a right to treat them both as abandoned, and he has a right to recover in this case, if you believe the testimony.</p> <p>2. —If the lines, as originally run by John Parker, were after-wards, and before any return, discovered to be run by mistake, and if said line ran across land surveyed previously on a warrant of Ephraim Steele, or so believed by him, then the plot or draft filed by him as an office paper, in the deputy surveyor’s office, correcting said survey, if the same was so intended by him, is to be deemed, as thus corrected, to be the official survey on John M’Kee’s warrant, until altered by the deputy surveyor, or by order of the surveyor general or board of property.</p> <p>rflinswer. — There is no evidence that the survey was not run according to the wishes of John M’Kee, or the owner of the warrant in that name. If there was any mistake in the matter, it was in the surveyor’s supposing he could not include the'land which had been once included in a survey to Steele. If he did actually afterwards, under such mistaken idea, exclude such portion of the land from M’Kee’s survey, without the consent of M’Kee, it would not affect M’Kee’s claim to the whole, as the survey has never been returned, and those claiming under M’Kee have taken possession of the whole before any intervening title occurred. There is nothing on the face of that'paper brought from the deputy surveyor’s office, which hinders the owners of M’Kee’s warrant from claiming up to the original lines run for them, or stops them from claiming to have that survey returned, including the land in dispute — and if, at the time the survey was made for M’Kee, he was under the mistaken notion that he could take no land included by Steele’s survey, if he has not had his survey so returned — but those claiming it, have claimed up to the lines originally made, they have a right to hold it, from any thing that has appeared in evidence in this case.</p> <p>3. —That no declaration or agreement as to boundary between Shuke and Steinmetz can operate, to enlarge or contract the real boundary of the owner of the fee, Shuke’s landlord.</p> <p>Answer. — It is true, as a general rule, that a tenant put into possession of a piece of pi’operly, has no right to enlarge or diminish his landlord’s boundaries. But it is also true, that if Shuke went into possession as an improver for Bausman, he had a right to fix the bounds with an adjoining improver, if.no settled bounds had been fixed by his landlord. There is no evidence that Shuke claimed or fixed any other bounds than those claimed by his landlord, whose deed includes, by description, this very land in dispute, if the jury believe the witnesses.</p> <p>4. —That as the plaintiff is settled under, or has purchased from, the owner or owners of John M’Kee’s warrant, and settled within its boundaries, he cannot support an ejectment for land without the bounds of the survey, on said warrant, (as the legal survey,) without other and a sufficient substantive' title to the same.</p> <p>Answer. — This proposition is true in the abstract, but as applied to this case, we have already shown that if the jury believe the testimony, the land in dispute is within M’Kee’s warrant, and the plaintiff, if owner of that warrant, has a right to have it returned, including the land in dispute.</p> <p>5. —The defendant’s not residing on the land claimed, an ejectment will not be the remedy; the wrong, if any, being trespass.</p> <p>Answer. — This point has not been relied on by defendant’s counsel; the only wonder is that it was ever made.'</p> <p>To the whole charge of the court, defendant’s counsel excepted.</p>

<p>No particular form of words is essential to the validity of an agreement in writing for the sale of land.</p> <p>The declarations of a party to a suit are not always evidence against him; if it be the admission of a fact material to the issue, it would be evidence; but if it be but the expression of an opinion as to the validity of his title, the subject matter of inquiry, and no one was prejudiced by it, it would not be evidence.</p> <p>A contract in writing for the sale and purchase of land may be abandoned by the vendee, and when his acts and conduct are relied upon as evidence of abandonment, it is a question of fact referable to the jury.</p>

<p>ERROR to the common pleas of Jilleghany county.</p> <p>The Farmers and Mechanics’ Bank against George Beale. Scire facias upon a judgment.</p> <p>The defendant gave in evidence the records of several judgments in his favour upon the docket of a justice of the peace, which he had assigned to Edward Simpson, Esq., for the use of the plaintiff] and gave evidence that 50 dollars had been paid on one of them to the justice.</p> <p>Edward Simpson, Esq., having been sworn on behalf of the plaintiff, testified as follows:</p> <p>“ At the time the judgments were assigned, I had an execution out against Mr Beale, at the suit of the Farmers and Mechanics’ Bank. He told me that he had a parcel of judgments on Esq. Enoch’s docket against his brother-in-law. That he did not wish to coerce payment; but would assign them to me to pay this judgment. 1 took the assignment of the judgments and agreed to give him credit for any amount that might be paid on the judgments. I did not consider myself as bound to go on and see that they were collected. I never ordered any execution upon any of them, nor interfered in any way either by ordering or staying executions. When any money wTas paid I got it from Esq. Enoch,- and gave credit for it. I got the money on William Pentland’s and William B. Foster’s judgments, and there is credit given for them in my account. Mr Beale never employed me as his attorney to get or collect the money, nor did he offer me any thing if I would get it. Those judgments were merely placed in my hands as collateral security by Mr Beale; they were not taken by me as payment; I would not have assumed such a responsibility.</p> <p>“I am not a stockholder in the Farmers and Mechanics’ Bank. This claim is not coming to me. Mr Beale gave me 10 dollars I think at the time these judgments were assigned. I did not consider myself in any way bound to go on and attend to the collection of the money on the judgments assigned. I never went for money collected by Esq. Enoch, upon these judgments, unless 1 had received notice of its having been collected. This was our understanding. Of the payment of the 50 dollars, by. E. Pentland, I knew nothing until to-day on the trial of this cause.”</p> <p>Upon this evidence the court below, charged the jury that the defendant was not entitled to the credit of 50 dollars paid to the justice.</p> <p>cited 2 Wils. 353; 2 Ld. Raym. 930; Bull. 182; 2 Wash. C. C. Rep. 191.</p>

Hugh Cowan against Samuel Getty. Ejectment. In the year 1809, Jeremiah Wright was seised of the land in dispute, and on the 11th of September, in that year, he mortgaged the same to John M’Michael, for the sum of 297 dollars. On the 19th of September 1811, Jeremiah Wright entered into an article of agreement with Hugh Sterling and Isabella Noble, for the sale of the same tract of land.

William Conrad against John Farrow; Replevin. The plaintiff, in order to enable him to give in evidence a bill of sale of the property in dispute, to which Joseph Turner and Samuel Bennett were witnesses, gave the following evidence': Moses Brawdy, sworn. — I have had this subpoena in my hands for about eight days. I have made inquiry and cannot find where either Samuel Bennett or Joseph Turner resides.

. This was an action of assumpsit by Dr Samuel S. Neale against the Overseers of the Poor of Alleghany township, to recover a compensation for medical services rendered to a pauper at the special instance and request of the overseers; and, to maintain the issue on his part, the plaintiff offered in evidence the written request of Daniel Naugle, one of the overseers of the township, to the plaintiff, to attend the patient, who was a pauper.

T. and J. Hopkins against W. W. Fetterman, by scire facias sur' recognizance. The plaintiffs had issued a foreign attachment against John Rice, requiring bail in 1500 dollars, which was reduced by Judge Shaler to 500 dollars. The defendant in this suit then entered into the necessary recognizance in that sum, the plaintiffs’ attorney having made an affidavit, that the debt due was less than 500 dollars.

<p>One of two administrators may submit a matter in dispute between himself in right of his intestate and another, to reference, and the award will bind the estate.</p> <p>A statement may he filed under the act of 1806, when the cause of action arises upon an award.</p>

This was an action of trespass by Aaron Dean against John Barnes.

Patrick Martin against Jacob Draher. Scire facias sur mechanic’s lien. Upon the facts of the case so fully stated in the opinion of this court, the court below (Dallas, President) was of opinion that the plaintiff could not recover.

This was an action of trespass by Joseph Stokely against The Robbstown Bridge Company.

<p>ERROR to the common pleas of Dauphin county.</p> <p>Ejectment for a lot of ground in Harrisburg, by Alexander L. Hays and wife against John Shannon.</p> <p>The title to the lot in dispute had been vested in Alexander Berryhill, who had made a contract to sell it to Galbraith Patterson. After the death of both Alexander Berryhill and Galbraith Patterson, no deed having been executed or purchase money paid, the administrators of Patterson, confessed a judgment for the amount of the purchase money to the administrators of Berryhill, on the 15th May 1802. Several executions issued and real estate of the decedent was sold upon this judgment. In 1824, the administrators of Galbraith Patterson being dead a scire facias issued to revive the judgment against Edmund B. Patterson and Alexander L. Hays and wife, heirs at law of Galbraith Patterson, deceased, which was returned “nihil” An alias scire facias, against the same defendants, was issued to April term 1824, which was also returned “ nihil,” and on the 26th of May 1824, judgment was signed by the plaintiff’s attorney in default of appearance. Upon this judgment an execution issued upoji which the lot in question was levied and sold to the defendant, and a deed made by the sheriff, on the 16th of December 1824. The plaintiffs had the title of all the heirs at law of Galbraith Patterson, deceased, and at their instance in 1829, the judgment against them and all subsequent proceedings were set aside by the court.</p> <p>The question was, whether the judgment execution and sale to the defendant were not erroneous and void, vesting no title in the defendant. The court below, (by the President,) ruled the point against the plaintiffs.</p>

<p>The three following opinions of Mr Justice Huston, in which he dissents from those of the court, having been omitted in their appropriate places, are now introduced, with references to the pages of this volume, where the respective cases may be found.</p>